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t 



GOVERNMENT 

IN THE 

UNITED STATES 


NATIONAL, STATE, AND LOCAL 


BY 

JAMES W. GARNER 

PROFESSOR OF POLITICAL SCIENCE IN THE UNIVERSITY 
OF ILLINOIS 




NEW YORK CINCINNATI CHICAGO , 

A M J'l I C A N BOOK COMPANY 






JK 2.74 

. (^■s04- 


Copyright, igii, by 
JAMES W. GARNER 

Entered at Stationers’ Hall, London 


Govt. U. S. 




PREFACE 


My aim in the preparation of this book has been to present in an 
elementary way the leading facts concerning the organization and 
activities of national, state, and local government in the United 
States. I have given rather greater emphasis than is customarily 
done in textbooks of this character to what may be called the dy¬ 
namics of government, that is, its actual workings, as contradistin¬ 
guished from organization. Consequently such subjects as the 
n,dministration of justice, the conduct of elections, the administra¬ 
tion of the postal service, the conduct of diplomacy, the manage¬ 
ment of the public lands, the regulation of commerce, the procedure 
of Congress and of the state legislatures, and various other activities 
of government have received more than the usual attention. Like¬ 
wise, I have laid especial stress upon the activities and methods of 
political parties, party conventions, primaries, the conduct of political 
campaigns, the regulation of campaign methods, and the like. The 
increasing importance of citizenship has led me to devote a chapter to 
that subject. To encourage wider reading among students, I have 
added to each chapter a brief list of references to books which 
should be in every high school library. The great value of illus¬ 
trative material as a means of acquainting students with the spirit 
and actual methods of government is now recognized. For the con¬ 
venience of teachers, I have therefore added at the end of each chap¬ 
ter a list of documentary and other illustrative material, most of 
which can be procured without cost and all of which may be used to 
advantage in supplementing the descriptive matter in the textbook. 
To stimulate the spirit of research and to encourage independent 
thinking among students, I have also added at the end of each 
chapter a list of search questions bearing upon the various subjects 
treated in the chapter. 

I am under obligations to a number of teachers for reading the 
proof sheets of this book and for giving me the benefit of their advice. 
Among those to whom I am especially indebted are Mr. Clarence O. 
Gardner, assistant in political science in. the University of Illinois, 
Mr. A. L. Beyer, of the Illinois Normal College, Mr. C. H. ElhoU, 
of the Southern Illinois Normal University, and Mr. William Wallis, 
Principal of the Bloomington (Ill.) High School. 

J. W. Garner. 


Urbana, Illinois. 


3 


CONTENTS 

CHAPTER PAGE 

I. Local Government; Towns, .Townships, and Counties . 5 

IT Local Government, Continued: Cities AND Villages. . 25 

III. The State Governments.57 

IV. The State Legislature.73 

V. The State Executive.91 

VI. The State Judiciary.109 

VII. Suffrage and Elections.125 

VIII. Political Parties and Nominating Methods . . . 144 

IX. The Establishment of the Union.159 

X. The Two Houses of Congress.174 

XL Organization and Procedure of Congress .... 197 

XII. Federal Finance, Taxation, and Money .... 217 

XIII. The Regulation of.Commerce.236 

XIV. Other Important Powers of Congress .... 248 

XV. The Presidency: Organization and Mode of Election . 274 

XVI. The Presidency, Continued: Inauguration, Powers 

AND Duties.298 

XVII. The Cabinet AND the Executive Departments . . . 324 

XVIII. The Federal Judiciary.353 

XIX. Government of the Territories and Dependencies . 369 

XX. Citizenship.383 

Articles of Confederation.393 

Constitution of the United States.399 

Index. . . 411 


4 








GOVERNMENT 

IN THE 

UNITED STATES 


CHAPTER I 

LOCAL GOVERNMENT: TOWNS, TOWNSHIPS, AND COUNTIES 

Kinds of Local Government.—Most of us live under at 
least four different governmental organizations: the govern¬ 
ment of the United States, the government of a state, the 
government of a county, and the government of a minor 
division, usually called a town or township. In addition to 
(or sometimes instead of) the county or township govern¬ 
ment, many of us live under a special form of government 
provided for urban communities,—cities, villages, or bor¬ 
oughs,—where the population is comparatively dense and 
where, therefore, the somewhat simple form of government 
provided for rural communities is insufficient. If the people 
of the smaller communities are allowed to manage their 
own local government and, if they wish, to choose their 
own public officials, they have a system of local self- 
goveruTnent. If, on the contrary, their local government is 
managed by the national or state government, and their of¬ 
ficials are appointed by some central authority, they live 
under a system of centralized government. 


6 


LOCAL GOVERNMENT 


Merits of Local Self-Government. —In the United States, 
local self-government is regarded as one of the chief merits 
of our political system, and is often declared to be one of 
the inalienable rights of the people. One great advantage 
of local self-government is that it brings government near 
the doors of every citizen, and permits the people of each 
locality, who are most familiar with their own local condi¬ 
tions and who know best what are their local needs, to regu¬ 
late their own affairs as they see fit. Also, such a system is 
well calculated to secure responsibility. So long as the 
local authorities are chosen by the community from its 
own inhabitants and are constantly under the eyes of the 
people, they can be more effectively controlled and made 
amenable to local public opinion than is possible where 
they are chosen by authorities distantly removed. An¬ 
other important advantage of local self-government is that 
it serves as a training school for the political education of 
the citizens. Allow them the privilege of choosing their 
own local officials and of regulating their own local concerns, 
and their interest in public affairs will be stimulated and 
their political intelligence increased and broadened. This 
not only will tend to secure more responsible government 
(local, state, and national), but will produce a more active 
type of citizenship. 

Importance of Local Government. —With the growth 
and congestion of population in centers, and the increasing 
complexity of our industrial and social life, the importance 
of local self-government has enormously increased. The 
local governments touch us at many more points to-day 
than does either the state or the national government; they 
regulate a far larger proportion of the concerns of our every¬ 
day life; and hence we feel the effects of corrupt or ineffi¬ 
cient local government far more keenly than we feel the 


IMPORTANCE OF LOCAL GOVERNMENT 


7 


effects of inefficient state or national government. We de¬ 
pend largely upon our local governments for the mainte¬ 
nance of the peace, order, and security of the community; 
for the protection of the public health; for the support of 
our schools; for the construction and maintenance of roads 
and bridges; for the care of the poor; and if we live in a city, 
for protection against fire, for our water supply, and many 
other services essential to our comfort and happiness. 
Finally, the larger proportion of the taxes we pay go toward 
the support of local government—a fact which makes it 
very important that our local governments should be effi¬ 
ciently, honestly, and economically conducted. 

Types of Local Government.—The form of local govern¬ 
ment existing in each state is such as the state itself pro¬ 
vides, the national government having no authority what¬ 
ever over the matter. Such differences as exist are more 
largely the result of historical conditions growing out of 
the early settlement of the states, than of any pronounced 
differences of opinion among the people in regard to forms 
of government. In Colonial times there were three general 
types of local rural government: the town system, in New 
England; the county system, in Virginia and other Southern 
colonies; and the county-township type—a combination 
of the first two forms—which developed in the middle 
colonies of New York and Pennsylvania and was carried 
to many of the new states of the West by settlers from the 
middle states, and is now the most common form to be 
found. 


TOWN GOVERNMENT 

Town and County in New England.—The characteristic 
feature of the town system of government is that the man¬ 
agement of local affairs devolves mainly upon the town (or 


8 


TOWN GOVERNMENT 


township, as it is usually called outside of New England), 
while the county is little more than an administrative dis¬ 
trict for judicial and election purposes. In some of the New 
England states, where the town system originated and 
where it exists in its purest form, the county is almost ig¬ 
nored as an area for local government. In Rhode Island 
it performs practically no duties of local government and 
is merely a judicial district; there no county officers are to 
be found except the sheriff and clerks of the courts. In the 
other New England states the county plays a more im¬ 
portant part than it does in Rhode Island, but in none of 
them does it share with the towns in anything like an equal 
measure the burden of local government. 

The New England Town.—The towns of New England 
are the oldest political communities in America, some of 
them being older in fact than the counties and states of 
which they are a part. Generally they vary from twenty to 
forty square miles in area, and are irregular in shape, being 
in this respect unlike the townships of many Western states, 
which were laid out in squares, each with an area of thirty- 
six square miles. In population they vary from a few hun¬ 
dred persons to more than 130,000 as is the case with New 
Haven, which, though an incorporated city, maintains a 
separate town organization. 

Powers of Town Government.—The functions performed 
by the town governments are varied and numerous. The 
most important, however, are the support and management 
of public schools, the laying out and maintenance of roads, 
the construction of bridges, the care of the poor, and in the 
more populous towns, fire protection, health protection, 
the maintenance of police, lighting, paving of streets, es¬ 
tablishment of parks, public libraries, etc. The towns 
also have power to enact ordinances of a police char- 


POWERS OF TOWN GOVERNMENT 


9 

acter, relating to such matters as bicycle riding on side¬ 
walks, the running of animals at large, etc. 

In addition to the management of the purely local affairs 
of the community, the town acts as the agent of the state 
government for carrying out certain state laws and policies. 
Thus it assesses and collects the state taxes, keeps records 
of vital statistics, enforces the health laws of the state, and 
acts for the state in various other matters. Finally, except 
in Massachusetts, the town is a district for choosing mem¬ 
bers of at least one branch of the legislature, and every¬ 
where in New England it is a district for state and national 
elections.^ 

The Town Meeting.—The central fact in the system of 
town government in New England is the town meeting, 
or assembly of the qualified voters of the town. The annual 
meeting is usually held in the early Spring (except in Con¬ 
necticut, where it is generally held in October) and special 
meetings are called from time to time as necessity may re¬ 
quire. All persons qualified under the state laws as voters 
are entitled to attend and take part in the proceedings of 
the meeting. Formerly non-attendance was punishable 
by a fine, but that is no longer practiced; it being supposed 
that each voter’s interest will be sufficient inducement to 
secure his presence. The attendance is larger in the towns 
of New England than in the states of the West where the 
town meeting exists, and it is larger in urban towns than in 
those of a rural character. Formal notice must be given 
of the time and place of the meeting, and this is done by a 
warrant issued by the selectmen, which specifies also the 
matters of business to be considered. This notice must be 
posted in conspicuous places a certain number of days before 
the meeting. No other matters than those mentioned in 
1 Fairlie, '‘Local Government,” p. 147. 


lO 


TOWN GOVERNMENT 


the warrant can be introduced or considered. The meetings 
are usually held in the town hall, though in the early history 
of New England they were frequently held in the church, 
which was thus a ‘‘meeting house” for civil as well as for 
church purposes. 

The meeting is called to order by the town clerk, who 
reads the warrant, after which an organization is effected 
by the election of a presiding officer called a moderator, 
and business then proceeds in accordance with the cus¬ 
tomary rules of parliamentary law. The next order of 
business is the election of the town officers for the ensuing 
year. This done, appropriations are made for the payment 
of the public expenses of the town, and the other measures 
necessary for the government of the town are then discussed 
and adopted. The most interesting fact about the New 
England town meeting is the lively discussion which char¬ 
acterizes its proceedings. Any voter may introduce res¬ 
olutions and express his opinion on any proposition before 
the assembly. One great advantage of this system of local 
government is its educative effect upon the citizens. It 
affords a means of keeping alive interest in public affairs 
and thus tends to develop a more intelligent citizenship. 
Important measures may be carefully discussed and criti¬ 
cized before the final vote is taken, and it is difficult to 
“railroad” or smuggle an objectionable measure through, 
as is sometimes done in the legislatures and city councils. 
Everything the officials and committees of the town have 
done is subject to be criticized, everything they are to do is 
subject to be regulated by the meeting. The final action 
of the meeting, therefore, is pretty apt to represent the real 
washes of the people. 

Conditions Unfavorable to Government by Town Meet¬ 
ing-Various causes, however, are at work in some parts of 


GOVERNMENT BY TOWN MEETING 


II 


New England to weaken the system of government by town 
meeting and to render it less suited to the modern conditions 
under which it must be operated. The growth of manu¬ 
facturing industries in many of the towns has introduced 
a conflict of interests between factory owners and operators 
on the one hand, and farmers on the other. The result is 
occasional squabbles and controversies which are not favor¬ 
able to government by mass meeting. The influx of for¬ 
eigners who are unaccustomed to local self-government 
and who are therefore unfamiliar with the duties of citi¬ 
zens in self-governing communities has in recent years also 
introduced an unfavorable element. Finally, the caucus 
has gained a foothold in many towns so that the election 
of officers and the determination of important policies are 
often controlled by a small group of persons who get to¬ 
gether prior to the town meeting and prepare a “slate” 
which is put through without adequate discussion. It is 
also to be noted that with the growth of population, many 
of the towns have become too populous to be governed ef¬ 
fectively by mass meeting. Frequently the town hall is too 
small to accommodate all the voters who attend, and satis¬ 
factory debate under such conditions is impossible. Often 
when a town reaches this size it organizes itself into a 
municipal corporation, and a city council takes the place 
of the popular assembly, but there are many places of con¬ 
siderable size which still retain the town organization. 

Town Officers.— Selectmen .—From the beginning of town 
government it was necessary to choose agents to look after 
the affairs of the community during the interval between 
town meetings. These persons were called selectmen^ and 
they have retained the name until the present day. 

Every town now has a body of selectmen chosen at the 
annual meeting, usually for one year (in Massachusetts for 


12 


TOWN GOVERNMENT 


three years) to act as a general managing board for the 
community. The number for each town varies from three 
to nine according to the size of the town, three being the 
most usual number. Reelections are frequent; one select¬ 
man in Brookline, Massachusetts, served nearly forty 
years. Their duties vary in the different towns. Generally 
they issue warrants for holding town meetings, lay out 
roads, impanel jurors, grant licenses, abate nuisances, ar¬ 
range for elections, control the town property, hear com¬ 
plaints, sometimes assess taxes (especially in the small 
towns), and many appoint police officials, boards of 
health, overseers of the poor, and other local officers if 
they are not chosen by the voters assembled in the town 
meeting. 

The Town Clerk .—Besides the selectmen, there are various 
other officers of the town, the number varying according 
to its size and importance. One of the most important of 
these is the clerk, who performs some duties discharged by 
the county clerk in states outside of New England. The 
town clerk is elected at the annual town meeting, and is 
frequently reelected from year to year. His principal duties 
are to keep the records of the town meetings, and of the 
meetings of the selectmen, issue marriage licenses, and 
keep registers of births, marriages, and deaths. 

and Treasurer .—In the large towns there are 
assessors of taxes, who prepare tax lists; in the smaller ones, 
as stated above, the selectmen act as assessors. In all of 
the towns there is a town treasurer who receives and takes 
care of all taxes collected from the citizens, turning over to 
the proper officers the portion which goes to the state and to 
the county. He also keeps an account of all receipts and 
disbursements and makes an annual report to the town 
meeting. 



TOWN OFFICERS 


13 


Overseers of the Poor .—To care for the pauper and de¬ 
pendent class there are usually one or more overseers of 
the poor elected by the town meeting, though in the smaller 
towns the selectmen perform this duty. Their principal 
function is to determine who shall receive public aid. 

Constables .—In every town one or more constables are 
elected. Formerly the olBhce, like that of sheriff, was one 
of dignity and power, but it has lost much of its early 
importance. As the sheriff is the peace officer of the 
county, the constables are the peace officers of the town. 
They pursue and arrest criminals and execute warrants 
issued by the selectmen and by the justices of the peace. 
In addition they sometimes summon jurors and act as 
collectors of the taxes. 

School Committee .—Generally there is also a school com¬ 
mittee elected in the town meeting. It is charged with 
establishing and visiting schools, selecting teachers, pre¬ 
scribing the courses of instruction, and appointing truant 
officers. 

Other Town Officials are justices of the peace; road sur¬ 
veyors or similar officers with other titles, charged with 
keeping public roads and bridges in repair; field drivers 
and poundkeepers, who take up and keep stray animals 
until claimed by their owners; fence viewers, who settle 
disputes among farmers in regard to partition fences and 
walls; sealers of weights and measures, who test the accu¬ 
racy of scales and measures; surveyors of lumber; keepers 
of almshouses; park commissioners; fish wardens; inspectors 
of various kinds; and a host of other minor officials, some of 
whom bear queer titles, and many of whom serve without 
pay or receive only trifling fees for their services. In some 
of the small towns, officials are so numerous as to constitute 
a goodly proportion of the population. The town of Middle- 


14 


COUNTY GOVERNMENT 


field (Mass.), for example, with only eighty-two voters 
recently had a total of eighteen officials.^ 

Town Government in the West.—Town government is 
not confined to New England; it has been carried to many 
Western states where immigrants from New England have 
settled, though in none of them does the town possess the 
vitality or play the important part in the management of 
public affairs that it does in the older communities where 
it originated. In the states of the South and the far West, 
there is no general system of town government. Counties, 
however, are usually divided into districts for a few un¬ 
important purposes. 

COUNTY GOVERNMENT 

The County.—The county^ is a civil division created by 
the state partly for purposes of state administration and 
partly for local government. New York city embraces 
within its boundaries four counties; other cities, like Chi¬ 
cago, Cleveland, Buffalo, and Cincinnati, contain within 
their limits the larger part of the population of the counties 
in which they are situated. The population of a large 
majority of the counties, however, is predominantly rural 
rather than urban in character, and where there is a large 
city within a county, most of the affairs of that portion of 
the county lying within the city limits are managed by the 
city government. 

Population and Area .—The population of the counties, 
and their areas, vary widely. Several counties in Texas in 
1910 had less than 400 inhabitants each; New York county, 
on the other hand, had more than 2,750,000. The most 

^ Hart, “Actual Government,” p. 172. 

2 The corresponding division in Louisiana is called a parish. 



THE COUNTY 


15 

populous counties are in the Eastern states, and the least 
populous in the South and West. There are now about 
3,000 counties in all the states, the number in each state 
ranging from three in Delaware and five in Rhode Island 
to 244 in Texas. In proportion to population Massachu¬ 
setts has a smaller number (fourteen) than any other state 
in the Union. In many states the minimum size of counties 
is fixed by the constitution. The minimum limit where it 
is fixed by the constitution is usually 400 square miles, 
though in some states it is 600 or 700 and in Texas it is 900 
square miles. Where no such restrictions have been pre¬ 
scribed, however, as in some of the old states, the area is 
sometimes very small. In Rhode Island, for example, there 
is one county with an area of only 25 square miles. New 
York has one county (Richmond) with an area of 58 square 
miles, and another (St. Lawrence) with an area of 2,880 
square miles. On the other hand, Choteau county in 
Montana has an area of over 16,000 square miles, being 
considerably larger than the combined area of several of the 
smaller states. 

To prevent the legislature from creating new counties 
or altering the boundaries of existing counties against the 
wishes of the inhabitants, and to secure to the people home 
rule in such matters, the constitutions of a number of states 
provide that new counties may be formed, or the area of 
existing counties altered, only with the consent of the in¬ 
habitants concerned, given by a direct popular vote on the 
question. 

Functions of the County .—The county is a judicial and 
elective district, and the jails and courthouses and some¬ 
times the almshouses are county rather than town institu¬ 
tions. Outside of New England the county is also often the 
unit of representation in the legislature; and it acts as an 


i6 


COUNTY GOVERNMENT 


agent of the state in collecting taxes and executing many 
laws. 

County Officers .—The County Board—Tho, principal 
county authority is usually a board of commissioners or 
supervisors (in Louisiana it is called the police jury), elected 
by the voters either from the county at large or from dis¬ 
tricts into which the county is divided. In most states it 
is a small board, usually three or five members; in some 
it is larger, being composed of one member from each town¬ 
ship in the county. In a few Southern states (Kentucky, 
Tennessee, and Arkansas), the county court of justices of 
the peace still acts as the county board, as in Colonial days. 

This board is both a legislative and an administrative 
body for the county, for the executive and legislative func¬ 
tions in local government are not always kept so separate 
and distinct as they are in the state and national govern¬ 
ments. It levies taxes, appropriates money for meeting 
the public expenses, has general control of county finances, 
has charge of county buildings and other property, settles 
claims against the county, approves bonds of county offi¬ 
cials, and in many states it establishes roads, lets con¬ 
tracts for the erection of bridges and other public works 
and for repairing them, licenses ferries and sometimes inns, 
saloons, peddlers, etc., cares for the poor and dependent 
classes, and performs numerous other services which vary 
in extent and character in the different states. 

The Sherif .—The most important executive officer of 
the county is the sheriff. This office is a very ancient one, 
though it has lost much of its former dignity and importance. 
The sheriff is elected by the people of the county, in all of 
the states except Rhode Island (where he is chosen by the 
state legislature), for a term ranging from one to four years, 
the most usual term being two years. The sheriff is usually 


COUNTY OFFICERS 


17 

assisted by a number of deputies, who are either regularly 
employed by him or especially summoned in case of emer¬ 
gencies. He is the general conservator of the peace of the 
county and is charged with attending the court as its execu¬ 
tive officer and with carrying out its orders, whether it be 
to sell property for nonpayment of taxes, to seize and sell 
property in execution of a judgment, or to hang a con¬ 
victed criminal. He has the power, and it is his duty, to 
arrest offenders and commit them to the jail, of which he is 
usually the custodian, and to this end he may summon to 
his aid the posse comitatus, which consists of the able-bodied 
male citizens of the county. In case of serious disturbance 
and riot he may call on the governor for the aid of the 
militia. He must exercise reasonable care for the safe¬ 
keeping of prisoners in his custody, and in some states he 
may be removed from office by the governor for negligence 
in protecting them against mob violence. In some of the 
Southern states he is ex officio tax collector and in some he 
is also ex officio public administrator. Other duties of a 
special nature are imposed upon sheriffs in different states. 

The Coroner .—Next to the sheriff among county officers 
in point of origin is the coroner, whose principal duty is to 
hold inquests upon the bodies of persons who are supposed 
to have died from violence or other unlawful means. In 
such cases it is the duty of the coroner to impanel a jury, 
usually of six persons, who from the testimony of witnesses, 
if there are such, and with the aid of a physician or other 
expert, decide the facts as to how the deceased met his 
death. A coroner’s inquest, however, is not a trial but 
merely an inquiry into the circumstances of the death. By 
an old common-law rule, the coroner usually succeeds to the 
office of sheriff in case the latter dies or for any other rea¬ 
son is disqualified from acting. 

Govt. U. S.—2 


i8 


COUNTY GOVERNMENT 


County Clerk .—Usually in every county there is an official 
called the county clerk, who in most states serves both as 
the clerk of the county board of commissioners, and as clerk 
of the county court and of the circuit court. In the former 
capacity he keeps a record of the proceedings of the meeting 
of the board. His books must contain a record of all bids 
for the erection of county buildings, of all contracts let, 
notices of elections ordered, licenses granted, roads laid out 
or changed, and indeed of all transactions of the board. As 
clerk of the court he must prepare and keep the docket of all 
cases for trial and of the judgments entered, issue processes 
and writs, certify to the accuracy of transcripts from the 
records of the court, and keep all papers and records of the 
court. In Pennsylvania and Delaware the clerk of the 
common pleas court is known as a ‘^prothonotary in 
Massachusetts the clerks of the probate courts are styled 
‘"registers of probate.” 

In a few states these two sets of duties are intrusted to 
different officials, one of whom is styled the county clerk 
and the other the clerk of the court. Usually the county 
clerk is also an election officer, being charged with the 
giving of notices of elections, the preparation of ballots, and 
the keeping of election records. County clerks are usually 
elected by the people of the county for a period ranging 
from one to four years, and reelection is much more fre¬ 
quent than is the case with other county officials, because 
of the greater need of experience and familiarity with the 
duties of the office.^ 

County Treasurer .—An important county officer is the 
treasurer, who receives and has custody of the state and 

1 In Vermont and Connecticut, however, they are appointed by 
the judges and hold during their pleasure, while in Rhode Island they 
are elected by the legislature annually. 


COUNTY OFFICERS 


19 


county taxes, though in a few states having the county 
system of local government there are special tax collectors, 
and, as we have seen, in some of them these duties are per¬ 
formed by the sheriff.^ Nearly everywhere the office is 
filled by popular election, though in a few states treasurers 
are chosen by the county board or appointed by the gover¬ 
nor. On account of the large sums of money often intrusted 
to their keeping, they are usually placed under heavy bond 
to insure the state and county against loss in case of defal¬ 
cation or other misapplication of the funds in their charge. 
County treasurers frequently deposit the public funds in 
local banks and retain for themselves the interest which 
they receive therefrom. Recently the treasurer of Cook 
county, Illinois, agreed before his election to turn over to 
the county all interest received by him on county funds 
deposited in banks, and in 1904 nearly half a million dollars 
was thus paid into the county treasury by him. 

County Auditor .—In a number of states the office of 
county auditor has been provided. Generally he keeps 
the accounts of the county, so as to show the receipts and 
expenditures of the public moneys, and issues warrants 
upon the treasurer for the payment of bills authorized by 
the county board. In some states his duties are limited 
merely to an examination of the accounts of county officers 
to see that they have been properly kept and that there 
has been no misapplication of public funds. 

Recorder of Deeds .—In all the states there are officials 
charged with keeping records of certain legal documents 
such as deeds, mortgages, and leases. They are designated 
by different names, the most usual being register of deeds 

^ Rhode Island is the only state in which there is no such official as 
the county treasurer, the custody of local funds being intrusted to the 
town treasurers. 


20 


COUNTY GOVERNMENT 


or recorder of deeds. They make exact copies of the instru¬ 
ments to be recorded, enter them in large books, and keep 
indexes by which such instruments can be readily found. 
In some states these duties are performed by the county 
clerk. The importance of the office is evident because upon 
the careful preservation and accuracy of the records must 
depend in many cases our rights to property. 

School Officers .—In the states outside New England there 
is usually a county superintendent or commissioner of 
schools and in most of the Southern states a county school 
board. In a large majority of the states the county superin¬ 
tendent is elected by the people, though in a few he is ap¬ 
pointed by the governor, elected by the local school boards, 
or chosen in other ways. The principal duties of the super¬ 
intendent of schools are to examine teachers, issue certifi¬ 
cates to teach, visit the schools, organize teachers’ institutes, 
give advice on educational matters to teachers and school 
trustees, make reports to the state superintendent of public 
education, sometimes decide questions appealed to him 
from the district trustees, and in general watch over and 
promote the educational interests of the county. County 
school boards in the South establish schools as do the town 
school committees and school district boards in other states. 

Other County Officials are the surveyor, who makes sur¬ 
veys of land upon the application of private owners, pre¬ 
pares plats, and keeps records of the same; superintendent 
or overseers of the poor, who have charge of almshouses, 
hospitals, and poor farms where they belong to the county; 
health officers or boards of health, whose duties are indi¬ 
cated by their titles; and occasionally other minor officials 
with varying titles and duties.^ 

1 The county court and the justices of the peace are discussed in 
the chapter on the state judiciary (chapter vi). 


THE TWO TYPES 


21 


THE COUNTY-TOWNSHIP SYSTEM 

In most states the general type of local government is 
that which we have designated as the county-township 
system. It is a system in which there is a more nearly 
equal division of local governmental functions between 
the county and township than is found either in New Eng¬ 
land or in the Southern states. 

The Two Types.—Growing out of the fact that the county- 
township system has two sources it has developed into two 
different types: the New York or supervisor type and the 
Pennsylvania or commissioner type. 

A. New York Type .—In New York the town with its 
annual meeting early made its appearance, though the 
town meeting there never exhibited the vigor and vitality 
that it did in New England. Early in the eighteenth cen¬ 
tury a law was enacted in New York providing that each 
township in the county should elect an officer called 
a supervisor, and that the supervisors of the several towns 
should form a county board and when assembled at the 
county seat should ‘‘supervise and examine the public 
and necessary charge of each county.” In time the man¬ 
agement of most of the affairs of the county was devolved 
upon the board of supervisors, and the system has con¬ 
tinued to the present. This board is now composed of 
not only the supervisors of the townships but also the 
representatives of the various villages and wards of the 
cities within the county. The county board thus represents 
the minor civil divisions of the county rather than the 
county as a whole. It has charge of various matters that 
in New England are managed by the towns. The town 
meeting exists but it is not largely attended, and does not 
play the important role in local government that it does in 


22 


THE COUNTY-TOWNSHIP SYSTEM 


New England. This system in time spread to those states, i 
like Michigan, Illinois, and Wisconsin, which were largely ' 
settled hy immigrants from New York. \ 

B. The Pennsylvania Type .—As New York was the 
parent of the supervisor system, Pennsylvania became the j 
parent of the commissioner system. Instead of a county 
board composed of representatives from the various town- 1 
ships in the county, provision was made for a board of * 
commissioners elected from the county at large. The Penn- < 
sylvania system spread to Ohio and from there to Indiana , 
and later to Iowa, Kansas, Missouri, Nebraska, North 
Dakota, and South Dakota. In some states the commis¬ 
sioners are elected by large districts into which the county > 
is divided for that purpose. 

Thus, first to New York, and second to Pennsylvania, 
belongs the honor of predetermining the character of local 
government in the West. The county-township system 
is the most widely distributed system of local government 
in the United States, and seems destined to become the pre¬ 
vailing system for the country as a whole. ^ The principal 
difference between the two types consists in the presence 
of the town meeting in the northern tier of states where 
the New York type prevails, and its absence in the states 
where the Pennsylvania type was introduced; in the differ¬ 
ent manner in which the county boards are constituted; and 
in the relative importance of the county and township in 
the local governments of the two groups of states. 

Conflict of Different Systems in the West.—An illus¬ 
tration of the attachment of the people of different parts 
of the country to the local institutions to which they were 
early accustomed, is found in the conflict which took place 
in Illinois between the settlers in the northern and southern 

^ Goodnow, “Comparative Administrative Law,” Vol. I, p. 178. 


CONFLICT OF DIFFERENT SYSTEMS 


23 


parts of the state. The southern part of the state was 
settled largely by people from the South, who brought with 
them the Southern ideas of local government, and as they 
constituted the bulk of the population of the state at the 
time it was admitted to the Union, the system of county 
government was established by law throughout the state; 
but the county board was organized on the Pennsylvania 
plan and not according to the old Southern system. The 
northern part of the state, on the other hand, was settled 
mainly by people from New England, who were likewise 
strongly attached to the local government to which they 
had been accustomed. They succeeded, therefore, in secur¬ 
ing the adoption of a clause in the constitution (1848), 
allowing the people of each county to adopt the township 
system whenever the majority of the legal voters of the 
county voting at any general election should so determine. 
Under the operation of this “home rule” provision, 85 of 
the 102 counties of the state have adopted the township 
system. A somewhat similar conflict occurred in Michi¬ 
gan, where the Pennsylvania commissioner system was first 
introduced, but with the influx of inhabitants from New 
York and New England dissatisfaction with that system 
increased until finally it was displaced by the New York 
or supervisor type. 

References.— Beard, American Government and Politics, ch. xxix. 
Bryce, The American Commonwealth (abridged edition), chs. xlvii- 
xlviii. Fairlie, Local Government in Towns, Counties and Villages, 
chs. iv-v, viii-xi. Fiske, Civil Government in the U. S., chs. ii-iv. 
Hart, Actual Government, ch. x. Hinsdale, American Government, 
ch. Iv. Wilson, The State (revised edition), secs. 1035-1043. Wil¬ 
loughby, Rights and Duties of Citizenship, pp. 260-265. 

Documentary and Illustrative Material.—i. A map of the state show¬ 
ing its division into counties. 2. A map of the county showing the 
towns, townships, supervisors’ districts, or other civil subdivisions. 3. A 


24 


LOCAL GOVERNMENT 


copy of a town meeting warrant. 4. A copy of the proceedings of the 
county board or town meeting, as published in the local newspaper. 

5. The legislative manual or blue book of the state in which lists of 
counties and their subdivisions, with their population, area, ofiicers, 
and other information may be found. Usually this may be procured 
from the secretary of state. 6. Reports of county officers. 7. Copies 
of the state constitution, which may usually be obtained from the 
secretary of state; and, if possible, a copy of the revised statutes of the 
state. 8. Volume of the census report on population. 

Research Questions 

1. What is the distinction between local self-government and cen¬ 
tralized government? What are the advantages of a system of local 
self-government? 

2. Why should counties, towns, and cities be subject in some 
measure to the control of the state? 

3. What are the provisions in the constitution of your state in 
regard to local government? 

4. How many counties are there in your state? What is the area 
and population of the largest? of the smallest? 

5. How may new counties be created in your state? How may old 
counties be divided? How are county seats located? 

6. Enter in your notebook a list of the county officers in your 
county. For how long a term is each elected? 

7. Which one of the three forms of local government described 
above does the system under which you live most nearly approach? 

8. How many members are there on your county board? Are 
they called commissioners or supervisors? Are they elected from 
the county at large or from districts? 

9. What are the political subdivisions of your county called, and 
how many are there? 

10. If you live in a state where the town system of local govern¬ 
ment exists, make a list of the town officers and state their duties. 

11. Is the town meeting a part of the system of local government 
where you live? If so, how often is it held? 

12. Are the public roads in your community under county or town 
control? the poorhouse? the assessment and collection of taxes? 

13. How many justices of the peace and constables are there in 
your town or district? Give their names. 


CHAPTER II 


LOCAL GOVERNMENT, CONTINUED: CITIES AND VILLAGES 

Need of Municipal Government.—The systems of local 
government described in the preceding chapter are those 
which have been devised mainly for rural communities, 
that is, communities containing a scattered population en¬ 
gaged principally in agricultural pursuits. In a sparsely 
settled community the governmental needs of the people 
are comparatively few, and a simple governmental organi¬ 
zation is sufficient for supplying those needs. In a densely 
populated community, however, a more complex and differ¬ 
ently organized form of government must be provided. 
When, therefore, a community becomes so populous that it 
cannot be governed effectively by town meetings, small 
boards, and the other forms of pohtical machinery de¬ 
scribed in the previous chapter, it is incorporated as a mu¬ 
nicipality, that is, the state gives it a charter which con¬ 
fers upon it special powers and privileges and provides it 
with a somewhat different type of local government for the 
exercise of those powers. The minimum population neces¬ 
sary to constitute a city varies in the different states. They 
all require, however, that there must be a considerable num¬ 
ber of inhabitants occupying a comparatively small area of 
territory, before the community can be incorporated as a 
city. In Illinois, for example, any community having at 
least 1,000 inhabitants resident within an area not exceed- 


25 


26 


MUNICIPAL GOVERNMENT 


ing four square miles may become a city. In some other 
states, a population of not less than 5,000 is required, while 
in New York as many as 10,000 are necessary. The census 
bureau of the United States, for statistical purposes, takes 
8,000 as the minimum population required to constitute a 
city, communities with a smaller population being classed 
as towns or villages. 

Growth of Cities.—One of the most remarkable politi¬ 
cal and social facts of the past century was the growth of 
towns and cities. When the constitution of the United 
States went into operation there were but six cities in the 
whole country with populations exceeding 8,000 each. 
Only three or four per cent of the people then lived under 
urban conditions: rural life was the rule, and city life the 
exception. Since the middle of the last century, however, 
there has been a remarkable change in the relative propor¬ 
tion of the total population living in the cities and in the 
country. According to the federal census of 1900 there 
were 546 cities in the United States with a population 
of more than 8,000 each, and the number is now consider¬ 
ably larger. It is estimated that 90 per cent of the people 
of Massachusetts now live in cities of over 8,000 inhabit¬ 
ants, and in a few other states the urban population con¬ 
stitutes more than two thirds of the whole. More than 
half the population of New York state is now found in 
the city of New York alone. Even in some of the prairie 
states of the West, as Illinois, nearly one half the popu¬ 
lation is now living under urban conditions. What is 
even more remarkable has been the rapidity with which 
many American cities have grown to their present size. 
Thus New York in a period of 100 years grew from a city 
of 50,000 inhabitants to a city of more than 4,000,000. 
The growth of Chicago was even more rapid. In 1907 


GROWTH OF CITIES 


27 

there was still living in that city the first white person 
born within its present limits. This person saw Chicago 
grow from a petty prairie village to a city of more than 
2,000,000 souls. 

Causes of City Growth.—The causes that have led to 
the extraordinary growth of cities are partly economic and 
partly social. With the more general use of labor-saving 
machinery in agriculture the number of men necessary to 
cultivate the farms and supply the world with food has de¬ 
creased relatively, leaving a larger number to engage in the 
manufacturing and other industries which are generally 
centered in the cities. One man with a machine can now 
do the work on the farm which formerly required several, 
so that fewer farmers in proportion to the total popula¬ 
tion are needed. On the other hand, the development of 
trade and commerce and the rise of the manufacturing in¬ 
dustries have created an increasing demand for city workers. 
Many persons are also drawn away from the country by 
the social attractions and intellectual advantages which the 
cities offer. In the cities, good schools are abundant and 
convenient. There also are colleges, libraries, picture galler¬ 
ies, museums, theaters, and other institutions for amusement 
and education. There the daily newspaper may be left at 
one’s door often for a cent a copy; there are to be found fine 
churches with pulpits occupied by able preachers; there one 
finds all the conveniences of life which modern science and 
skill can provide—everything to gratify the social instinct, 
and little or none of the dullness of country life. These are 
some of the attractions that lure the young and the old as 
well from the rural communities to swell the population of 
the cities. These are the forces that are converting us from 
a nation of country dwellers to a nation of city dwellers. 

Consequences of City Growth.—The congestion of the 


28 


MUNICIPAL GOVERNMENT 


population in the towns and cities has had far-reaching 
economic, social, and political effects. 

Economic Results .—As the city population becomes more 
dense the number of those who are able to own their own 
homes becomes less, and thus the city tends more and 
more to become a community of tenants. According to the 
census of 1900, while more than 64 per cent of the families 
of the United States living on farms owned their own 
homes, less than 35 per cent of those living in cities were 
owners of the houses they occupied. In New York city 
the proportion was only about 12 per cent, and in the 
boroughs of Manhattan and the Bronx it was less than 6 
per cent. Of these hardly more than 2 per cent owned 
homes that were clear of mortgages. 

Social Results .—Another result of the movement of the 
people to the cities is the evil of overcrowding. Manifestly 
where the area of a city is limited, as is often the case, there 
must come a time when the population will be massed 
and crowded together under circumstances that are dan¬ 
gerous to the health, morals, and comfort of the people. In 
some of the large cities to-day the conditions resulting from 
overcrowding are truly shocking. According to the census 
of 1900, while the average number of persons to a dwelling 
throughout the country as a whole was about five, the 
number in New York city was nearly fifteen, and in the 
boroughs of Manhattan and the Bronx it was more than 
twenty. In several parts of the city there are blocks con¬ 
taining more than 1,000 persons to the acre, Under such 
circumstances the rate of mortality is necessarily high, and 
immorality and vice are encouraged. In the great cities one 
finds a large floating population with no local attachment 
or civic pride, and thousands of persons, foreigners and 
natives alike, with low standards of life. There also the 


CONSEQUENCES OF CITY GROWTH 


29 


individual is lost in a multitude, and the restraining in¬ 
fluence of public opinion, which is so powerful in the coun¬ 
try, is lacking. Thus the tendency to wrongdoing is greatly 
accentuated. 

Political Results. —Finally, the growth of the cities has 
had important political consequences, in that it has given 
rise to conditions that have increased enormously the 
problems of local government. As long as the population 
of the nation was predominantly rural and the cities few 
in number and small in size, the difficulties of local govern¬ 
ment were not serious. But the presence of such conditions 
as those described above, together with the task which 
devolves upon the city of performing so many services for 
the people that are not required in sparsely settled com¬ 
munities, has made the problem of city government the 
most difficult of all governmental problems. 

Movement to Check Immigration to the Cities.—The 
abandonment of the farms and the movement of the people 
to the cities is viewed by many persons with regret, not to 
say alarm. There are some who think that the cities are 
the plague spots of the country, that city life tends to pro¬ 
duce an enfeebled race with low moral standards; that they 
are making of us a nation of tenants, tramps, socialists, 
anarchists, and criminals; and that the economic welfare 
of the country is being endangered by the drift away from 
the farm. Such a view, of course, represents an exagger¬ 
ated conception of the dangers, though it will be readily 
admitted that the change is not without serious evils. 

Lately we have heard a great deal of discussion among 
thoughtful men as to the possibility of checking the move¬ 
ment of the young to the cities. And notwithstanding the 
movement from the country to the city it is evident that 
the conditions of rural life are much more favorable than 


MUNICIPAL GOVERNJMENT 


30 

formerly. The daily free delivery of mail at the doors of 
the farmers, the introduction of the telephone and the in- 
terurban railway, to say nothing of the use of labor-saving 
machinery, have done much to add to the attractiveness of 
country life and to diminish the hardships of farm life and 
other rural occupations. But these advantages have not 
checked the movement to the cities, and other remedies 
must be found. 

The Position of the City in the State.—The city oc¬ 
cupies a twofold position in the state of which it is a 
part. In the first place, it is an agent of the state for carry¬ 
ing out certain state laws and policies. Thus it acts for 
the state when it protects the public health, cares for the 
poor, maintains peace and order, supports education, and 
collects the taxes for the state. In the second place, the 
city undertakes to perform numerous services which are 
of interest to the people of the locality alone and which 
do not concern the people of the state as a whole. When 
acting in this latter capacity, the city is merely an organ 
of local government and not an agent of the state. Thus 
the city sometimes supplies the inhabitants with light and 
water, protects them against fire, maintains sewers, dis¬ 
poses of garbage and other refuse, builds wharves, docks, 
and bridges, and maintains public libraries, museums, bath 
houses, and other institutions. 

State Control of Cities .—The organization, powers, and 
privileges of the city are determined for the most part by 
the state constitution and laws. In a few states the finan¬ 
cial transactions of city officials are subject to state in¬ 
spection and audit, and in practically all of them their power 
to levy taxes and borrow money is placed under restrictions. 
It is felt that if the cities were left entirely free from state 
control they could not always be relied upon by the state 


POSITION OF THE CITY IN THE STATE 


31 

to carry out the laws which they are charged with enforc¬ 
ing, and that in other respects their action might not be 
in harmony with the general policy of the state. In those 
matters, however, which are of purely local interest, the 
state should interfere as little as possible. Interference in 
such cases is contrary to the ideas of local self-government 
which Americans cherish as one of their most valuable 
rights. However, the right of the people living in cities 
to regulate their own local affairs according to their own 
notions is not always recognized, and there are frequent 
complaints that state legislatures have interfered when the 
interests of the state did not justify it. 

The City Charter.—The city, unlike the county, town¬ 
ship, and other minor civil divisions described in the pre¬ 
ceding chapter, has a charter granted to it by the state 
which gives the city more of the character of a public corpo¬ 
ration. The charter contains the name of the place in¬ 
corporated, a description of its boundaries, its form of 
organization, and a detailed enumeration of the powers 
which it may exercise. It is granted by the state legislature, 
though, unlike the charter granted to a private corpora¬ 
tion, such as a bank or a railway company, it is not a con¬ 
tract but simply a legislative act which may be repealed or 
altered at the will of the legislature. Thus, legally, the 
city is at the mercy of the legislature. Its charter, indeed, 
may be taken away from it and the city governed directly 
by the legislature in such manner as it may choose, and 
this has sometimes been done in the case of cities which 
grossly abused their powers or got themselves into such 
hopeless financial condition that they were unable to meet 
their obligations or properly discharge their duties. 

Methods of Granting Charters .—Formerly it was the cus¬ 
tom in most states for the legislature to frame a charter for 


MUNICIPAL GOVERNMENT 


32 

each city as application was made. The result was that 
different cities received different kinds of charters, some 
more liberal than others. Besides, the time of the legis¬ 
lature was taken up with the consideration of applications 
for charters, and abundant opportunities were offered for 
favoritism and for the use of improper influences upon 
members of the legislature by cities that desired new char¬ 
ters or amendments to existing charters. To avoid these 
evils many states adopted the practice of passing a gen¬ 
eral law for the government of all cities in the state, un¬ 
der which any community which desired to be incorpo¬ 
rated as a city might by fulfilling certain prescribed con¬ 
ditions be organized under this general act, which then be¬ 
came the charter of the city. Under this system all cities 
in the state would have practically the same organization 
and powers. 

'‘'‘Rome Rule'’' Charters .—The feeling that the people 
concerned should be given some power in framing the 
charters under which they are to be governed has led in 
comparatively recent times to the adoption of what are 
called ‘‘home rule” provisions in the constitutions of a 
number of states—that is, provisions allowing the people of 
each city, under certain restrictions, to frame their own 
charters. Thus the Missouri constitution, adopted in 1875, 
allows each city having a population of more than 100,000 
inhabitants to prepare its own charter, which, when sub¬ 
mitted to the voters and approved by them, shall go into 
effect provided it is not inconsistent with the state law. A 
somewhat similar plan has been adopted in California, 
Oregon, Wasl\ington, Minnesota, Colorado, Oklahoma, and 
Michigan. 

Powers of Municipal Corporations .—Except in a few 
isolated instances, of which Houston, Texas, is an example, 


THE CITY CHARTER 


33 


the powers that may be exercised by a city are specifically 
enumerated with great detail in the charter, and where that 
is done no other powers may be exercised by the city except 
such as are clearly incidental to, or implied in, those enumer¬ 
ated. Thus when the city of New York wished to build an 
elevated railway, it had to secure express authority from the 
legislature, which body insisted that the work should be 
carried out under the supervision of a state commission. 
Likewise when the city of Chicago wanted power to pre¬ 
scribe the width of wagon tires to be used on its streets, re¬ 
course had to be made to the state legislature for permis¬ 
sion, though in neither case was the matter involved one 
which concerned directly anybody except the people of the 
cities affected. 

Legislative Interference in the Affairs of Cities.—The 
power of the state legislature over the cities has sometimes 
been employed to interfere in their local affairs and to force 
upon the cities measures or policies to which they were op¬ 
posed. Thus the legislature of Pennsylvania passed an act 
requiring the city of Philadelphia to build an expensive city 
hall which cost the taxpayers of the city something like 
$20,000,000, though it was not a matter of direct interest 
to the people outside of the city. Likewise the legislature 
of Ohio required the city of Cleveland to erect a soldiers’ 
monument at a cost of $300,000 against the wishes of the 
taxpayers who had to bear the expense. 

Sometimes the legislature employs its power of control 
over the cities in the interest of the political party which 
happens to be in control of the legislature, and it often 
passes laws relating to the hours of opening and closing of 
saloons in the cities when local sentiment is overwhelm¬ 
ingly opposed to such laws. But as to the moral right of 
the legislature to enact such laws as the last mentioned, 
Govt. U. S.—3 


MUNICIPAL GOVERNMENT 


34 

there is a difference of opinion. The disposition of the 
legislature to interfere in the affairs of the cities by means 
of special acts—that is, acts applying to a single city—has 
come to be a crying evil and has been a cause of complaint 
from the people of nearly every large city. The New York 
legislature during a period of ten years passed nearly four 
hundred laws applying to the city of New York. 

Constitutional Protection Against Special Legislation .—To 
protect the cities against special legislation and at the same 
time to remove the opportunity which such a practice offers 
for bribery and the employment of other improper means 
to secure special legislation or to prevent it, when it is not 
desired, the constitutions of many states contain provisions 
absolutely prohibiting the legislature from enacting laws 
applying to particular cities except where general laws are 
inapplicable. Where such constitutional provisions have 
been adopted, the legislatures have frequently evaded them 
by a system of classification by which acts are passed ap¬ 
plying to all cities within a class when in reality there may 
be but a single city in such a class. And the courts have 
generally held such acts to be constitutional where the 
classifications are not unreasonable. 

The New York constitution recognizes that special legis¬ 
lation applying to larger cities may sometimes be desirable, 
and instead of forbidding such legislation absolutely it 
classifies the cities of the state into three classes according 
to population,—New York City, Buffalo, and Rochester con¬ 
stituting the first class,—and allows the legislature to enact 
laws affecting a single city within a class, subject to the 
condition that the proposed law must be submitted to the 
authorities of the city affected, for their approval, and if dis¬ 
approved it is void unless repassed by the legislature. Like¬ 
wise by recent amendment to the constitution of Illinois 


LEGISLATIVE INTERFERENCE 


35 


the legislature of the state is allowed to pass special laws 
affecting the city of Chicago alone, but such legislation 
cannot take effect until it has been approved by the voters 
of the city at a general or special election. 

Functions of Municipal Government.—The functions 
and activities of city government are numerous and varied, 
much more so; of course, in large cities than in small ones. 
First of all, the problem of police protection, the punish¬ 
ment of crime, and the care of the public safety in a com¬ 
munity where thousands of persons of all nationalities and 
with varying standards of respect for law are living in close 
proximity, is very difficult and requires a small army of 
officials which would be entirely unnecessary in a rural 
community. Likewise the duty of caring for the public 
health, of preventing the spread of disease, of securing a 
wholesome water supply, of protecting the people against 
impure and adulterated food, and of securing wholesome 
and sanitary conditions generally, is very much greater in 
cities than in sparsely settled rural districts or in villages 
and small towns. Then there are the problems of fire pro¬ 
tection, the milk supply, gas and electric light, street rail¬ 
way transportation, the construction and maintenance of 
streets, education, building regulations, the care of the 
poor and dependent class, disposal of sewage and waste, 
the maintenance of hospitals, libraries, museums, and other 
institutions, the regulation of traffic on the streets, and 
many other activities too numerous to mention. 

The City Council.—The legislative branch of most city 
governments is a council composed of members elected by 
the voters for a term ranging from one year in some of the 
cities of New England to four years in certain other parts 
of the country, the most usual term being two years. The 
number of members ranges from 9 in Boston to 190 in 


MUNICIPAL GOVERNMENT 


36 

Philadelphia. New York city has a council of 79 mem¬ 
bers; Chicago, 7c; and San Francisco, 18. In the large ma¬ 
jority of cities this council, unlike the state legislatures, is 
a single-chambered body, though in a few important cities, 
notably Philadelphia, Baltimore, St. Louis, Buffalo, and 
Louisville it is composed of two houses. 

Mode of Election. —Generally, the members of the city 
council are chosen by districts or wards, usually one mem¬ 
ber from each, though in some cities several are elected 
from each district; in Illinois cities two members are elected 
from each ward into which the city is divided. Where 
the council is composed of two houses, the members of the 
upper house are sometimes chosen from the city at large on 
a general ticket, and the members of the lower house by 
wards. In San Francisco, where the council is composed 
of but one house, the eighteen members are elected from 
the city at large. The same is true of Boston, whose coun¬ 
cil under the new charter is composed of but nine members. 

The method of election by wards is open to the objec¬ 
tion that it tends to the election of inferior men and of 
men who are likely to consider themselves the special 
representatives of their wards rather than the representa¬ 
tives of the people of the city at large. On the other hand, 
election from the city at large, or election of several mem¬ 
bers from large districts on a general ticket, unless coupled 
with a system of minority representation, is likely to give 
the majority party an undue advantage. Perhaps the 
best plan would be to elect a certain number from the city 
at large and the rest by wards. 

Moreover, in some of the large cities, of which Chicago 
is a conspicuous example, the ward system leads to in¬ 
equality of representation. Thus certain of the wards of 
the city which are largely inhabited by the worst elements 


THE CITY COUNCIL 


37 

of the population are over-represented as compared with 
wards in other parts of the city inhabited largely by the 
better class of citizens. Finally, where the ward system 
prevails, the ward becomes the seat of a local political 
organization whose methods are so often corrupt and dis¬ 
honorable that they constitute a great hindrance to good 
city government. 

Powers of City Councils.—Unlike the state legislature, 
which is an authority of general powers, the city council in 
America has only such powers as are conferred upon it by 
the charter of the city. These powers are numerous and 
varied and relate to such matters as the laying out and 
care of streets, the protection of the public health, the 
regulation of the sale of liquor, the control of places of 
public amusement, markets, bathing places, traffic on the 
streets, the suppression of vice and immorality, protection 
against fire, the disposal of waste, the lighting of the 
streets, and in general the preservation of the good order 
and peace of the community. Its powers are exercised 
usually through acts called ordinances, which are framed 
and enacted after the manner followed by the legislature 
in enacting laws for the government of the state. The 
power of the council is frequently limited by the state con¬ 
stitution or laws. Thus very frequently it is forbidden to 
incur debts beyond a certain limit, or to levy taxes above a 
certain amount, and frequently the purposes for which 
taxes may be levied and money appropriated are carefully 
specified. 

Franchises .—One of the most important powers of a 
city council is the granting of franchises to street railway, 
gas, electric light, water, and other public service com¬ 
panies to maintain tracks, wires, pipe lines, etc., in the 
streets and other public places. As these franchises are 


MUNICIPAL GOVERNMENT 


38 

often of great value to the companies receiving them, a 
temptation is thus created for the employment of bribery 
and other improper means for securing concessions of this 
character. In many cities aldermen have been paid large 
sums of money for their votes on franchise grants, and in¬ 
deed the practice has been so often resorted to that there 
is a popular belief that most public utility franchises in the 
larger cities are secured in this way. Formerly franchises 
were frequently granted for long periods of years or for an 
indefinite period, and often without adequate compensation 
to the city. This abuse became so common that the people 
gradually came to adopt constitutional provisions or state 
laws limiting the periods for which public service franchises 
could be granted, and indeed a few, notably those which 
have adopted the commission form of government, have 
gone to the length of making all such grants subject to 
the approval of the voters of the city at an election held 
for the purpose. 

The Mayor.—The chief executive officer of the city is 
the mayor. With a few unimportant exceptions he is 
elected by the qualified voters of the city and serves for a 
term varying from one to five years, the most usual term 
being two years. In Boston, Chicago, and New York city 
the term is four years, and in Jersey City it is five years. 

Powers and Duties .—It is the duty of the mayor to en¬ 
force the ordinances of the city and also such laws of the 
state as he may be charged with executing. Like the 
sheriff of the county, he is a peace officer and as such is 
charged with the maintenance of order and the suppres¬ 
sion of riots, and if a disturbance becomes so great that it 
cannot be suppressed by the police he may, like the sheriff, 
call on the governor for the militia. In some cities he is 
the presiding officer of the city council, though not a mem- 


THE MAYOR 


39 


ber of it. Generally he is required to submit messages to 
the council concerning the condition of the city, and may 
recommend measures for its consideration. Practically 
everywhere he has the power to veto ordinances passed by 
the city council, and some mayors have made extensive use 
of this power. The council, however, may pass an ordi¬ 
nance over the mayor’s veto. 

One of the important powers of the mayor is the ap¬ 
pointment of officials, though usually the assent of the 
council is necessary to the validity of most appointments. 
In recent years there has been a considerable extension of 
this power in a number of the large cities, where the mayor 
has been given the absolute power of appointing the heads 
of the administrative departments. Indeed, the tendency 
now seems to be in the direction of concentrating larger 
powers of appointment in his hands as a means of fixing 
responsibility more definitely. There is also a tendency in 
the direction of giving him a large power of removal, sub¬ 
ject to the provision that the official shall be removed only 
for good cause and that he shall be given a hearing and an 
opportunity to answer the charges made against him. 

Finally, the mayor usually has the power to grant par¬ 
dons for violations of the ordinances of the city, and this 
power is sometimes extensively used. Thus during the 
year 1909 the mayor of Chicago released more than 1,100 
offenders who had been committed to prison, or about 
10 per cent of the whole number committed. In some 
cities also he may remit fines that have been paid for vio¬ 
lations of city ordinances. 

Administrative Departments .—Single Commissioner Sys¬ 
tem vs. the Board System.—In every large city there are, in 
addition to the mayor, a number of departments each 
charged with the conduct of some particular branch of the 


40 


MUNICIPAL GOVERNMENT 


city’s affairs. They are organized on one of two principles: 
each is under the control either of a board or of a single 
commissioner. Each method of organization has its ad¬ 
vantages and disadvantages, but experience has shown 
that the single-headed department is the one best calcu¬ 
lated to secure efficiency and responsibility, and it is the 
one most generally employed. The board system is well 
adapted to secure dehberation, but not promptness and 
unity of action nor responsibility, because one member 
may easily shift the responsibility for an error or blunder 
upon his colleagues. But for certain branches of admin¬ 
istration such as the civil service, park administration, school 
administration, assessments, and possibly others, the board 
system has important advantages. 

Number of Departments .—The number of these adminis¬ 
trative departments varies widely among the different 
cities of the country. In general we find the following de¬ 
partments: a finance department, a law department, a 
health department, a fire department, a police department, 
a department of charities, and a department of public 
works. In some cities, however, the number of departments 
is much larger than this. Thus in some we find a street 
cleaning department, a department of buildings, a sewer 
department, a department of parks, a department of docks, 
and so on. 

Choice of Heads of Departments .—The heads of these 
departments are in most cases appointed by the mayor, 
to whom they are responsible, though nearly ever3rwhere 
the approval of the council is necessary to his appointments. 
In recent years there has been more or less criticism of the 
practice of choosing administrative officials by popular elec¬ 
tion. In every large city there is a great mass of unintelli¬ 
gent voters who are easily controlled by corrupt and schem- 


ADMINISTRATIVE DEPARTMENTS 


41 


ing politicians. Moreover, it is impossible for the voters 
in a large city, however intelligent they may be, to become 
acquainted with the merits of all the numerous candidates 
when there are a considerable number of offices to be filled. 
It is believed by many municipal reformers, therefore, that 
better results could be obtained by allowing the mayor to 
choose all the heads of important departments, except pos¬ 
sibly the chief finance officer, who might properly be 
chosen by the people. For the selection of the large num¬ 
ber of subordinate officials, the best method yet devised is 
that known as the civil service system, which has been in¬ 
troduced in most of the larger cities. Under this system 
appointments are made on the basis of merit and fitness, 
which quahties are ascertained by an examination by a 
board of civil service commissioners. 

City Finances.—One of the most remarkable features of 
American municipal development has been the extraor¬ 
dinary growth of municipal expenditures. The functions 
and activities of modern city government are indeed so 
numerous and varied as to require a larger number of 
officials and a greater expenditure of money than is re¬ 
quired for the conduct of any other of the various govern¬ 
ments under which we live. By far the larger part of the 
taxes contributed by those who live in the cities go to meet 
the expenses of municipal government. In the year 1909 
the budget of New York city was $156,000,000, while that 
of Chicago was $55,000,000, in each case the amount being 
about five times as great as the appropriations for the sup¬ 
port of the government of the state in which the city is 
situated. The annual cost of operating our largest city 
exceeds what was required to maintain the national govern¬ 
ment in its early days, and is greater than the national 
budget of a number of European countries to-day. New 


42 


MUNICIPAL GOVERNMENT 


York city now has a debt almost as large as the national 
debt, her annual interest account alone being in the neigh¬ 
borhood of $30,000,000. The proper raising and expendi¬ 
ture of such vast sums of money is one of the most difficult 
tasks of a city government. For this purpose there are 
assessors, collectors, treasurers, comptrollers or auditors, 
and various other officials. The levying of the taxes is 
everywhere a power of the city council, though in many 
states the amount of taxes which may be levied by it is 
limited—usually to a certain percentage of the value of 
the taxable property within the city, and in some states 
the limit is fixed so low that the cities are handicapped in 
raising sufficient revenue to meet their expenses. The 
purpose of such restrictions is to prevent extravagance and 
wastefulness, and the history of many of our cities proves 
that they have, in general, served a good purpose. 

Sources of Municipal Taxation .—The principal source of 
income for city, as for state and county, purposes is the 
general property tax, though cities are usually allowed to 
levy a great variety of other taxes, such as taxes on cer¬ 
tain trades and businesses. Many cities derive a large 
portion of their income from license taxes on saloons. New 
York, for example, receives about $8,000,000 a year from 
this source. Some cities receive a considerable income 
from franchises granted to public corporations. Thus Chi¬ 
cago receives 55 per cent of the net receipts of one of the 
street railway companies, the amount in 1911 aggregating 
more than $890,000. In many cities the expense of public 
improvements, particularly street paving and the laying of 
sidewalks, is met by what are called “special assessments,” 
that is, assessments laid upon the owners of the property 
benefited, in proportion to the benefits received from the 
improvement. 


CITY FINANCES 


43 

Municipal Expenditures .—Appropriations are in most 
cities made by the city council subject to certain rules and 
restrictions prescribed by state law. In New York city, 
however, the budget is prepared by a board of estimate and 
apportionment composed of a few high city officers, and in a 
few other cities the preparation of the budget is intrusted to 
other authorities than the city council. To secure accuracy 
and honesty in the expenditure of city funds, provision is 
commonly made for auditing the accounts of financial 
officials, and in a few states like Ohio, Indiana, and Iowa, 
provision is made by law for state inspection and audit of 
municipal accounts by state examiners. This plan has 
proved very effective. In one state, these inspectors found 
that municipal officials had misappropriated more than 
$500,000, over half of which was recovered and turned into 
the proper treasuries. In a number of cities where the 
commission form of government has been adopted provi¬ 
sion is made for monthly financial statements which 
must be published in the local newspapers, and for 
annual examinations of city accounts by expert ac¬ 
countants. 

City Debts .—For the construction of permanent im¬ 
provements, the erection of public buildings, and the es¬ 
tablishment of commercial enterprises such as waterworks 
and gas works, cities must borrow money; and so one of 
the powers always given them is that of incurring debts. 
This power, however, was greatly abused in the early his¬ 
tory of our municipal development—so much so that 
many cities found themselves on the verge of bankruptcy. 
In order to check this evil, many states have placed a 
hmit upon the municipal borrowing power, and some have 
provided that whenever a debt is incurred, provision shall 
be made at the same time for payment of the interest and 


44 


MUNICIPAL GOVERNMENT 


the principal within a certain period of years. The debt 
limit is usually a certain percentage of the assessed valua¬ 
tion of the taxable property within the city. It ranges 
from 2 per cent in Boston, to lo per cent in New York. 
In some cases the limit is so low that cities have been handi¬ 
capped in constructing needed permanent improvements. 
Thus in Chicago, where property has been assessed at only 
one fifth of its real value, the result of the debt limitation 
has been to render extensive improvements very difficult, 
and to compel the city to meet the expense of many abso¬ 
lutely necessary undertakings out of its current revenues 
when the cost should have been distributed over a period 
of years. Chicago, as a consequence, has the smallest debt 
of any of the large cities of the country. 

Police Protection.—Where large numbers of people are 
living together in close proximity the problem of maintain¬ 
ing order and preventing some from violating the rights of 
others is very much greater than in sparsely settled rural 
communities. One of the principal tasks of the authorities 
in a city, therefore, is to provide police protection for the in¬ 
habitants. This is done through the agency of a body of 
men organized and uniformed somewhat after the manner 
of an army. The size of this force varies ordinarily in pro¬ 
portion to the population of the city. In New York city, 
for example, the entire police force numbers more than 
10,000 men—a body as large as the army of the United 
States was in the early days of our history. In Chicago 
there are altogether some 8,ooo men in the police service of 
the city. 

Organization .—The management of the police force is 
usually under the direction of an official called a commis¬ 
sioner, superintendent, or chief, though in some cities it is 
controlled instead by a board. In a few cities this board is 


POLICE PROTECTION 


45 

appointed by some state official, usually the governor, for 
it is believed by many persons that since the police are 
charged with enforcing state laws as well as municipal or¬ 
dinances, they should be under state rather than local 
control. Where they are entirely under local control, it is 
sometimes difficult to secure the enforcement of such state 
laws as those requiring saloons to be closed at certain 
hours during the night and on Sundays, especially when 
local sentiment is opposed to such restrictions. Below the 
head of the police force are usually deputy chiefs, inspec¬ 
tors, captains, sergeants, roundsmen, and finally the patrol¬ 
men. The city is usually divided into precincts, in each of 
which there is a police station under the charge of a ser¬ 
geant or some other official. A number of precincts are 
grouped together in districts with an inspector in charge 
of each, and so on. In the large cities there are also usually 
special detachments of the police force organized for special 
services. Such are the mounted police, the bicycle squad, 
the river and harbor police, the sanitary police, and the 
detective force. 

Police Corruption .—The control of the police branch of 
the city service is very difficult because of the opportunities 
for corruption which are open to the members of the force. 
It has not infrequently happened that the police in the large 
cities have systematically sold the right to violate the law. 
Gambling houses, saloons, and other places of vice some-^ 
times regularly pay members of the police force for the 
privilege of violating the law, and the heads of the force 
have frequently found it impossible to prevent the prac¬ 
tice. A recent police commissioner in New York, for ex¬ 
ample, said that there was an organized system among the 
police of his city for selling the right to violate the law; 
that many of the captains and inspectors had grown rich 


46 


MUNICIPAL GOVERNMENT 


out of the proceeds, and that the system was so thoroughly 
intrenched that he was powerless to break it up. 

Health Protection.—In densely populated districts the 
danger from the spread of disease is much greater than in 
rural communities where the conditions which breed dis¬ 
ease are less prevalent, and where the spread of epidemics 
may be more easily prevented. In the smaller cities the 
chief health authority is a board, but in the large cities 
there is usually a department of health at the head of which 
is a single commissioner. Other officials are inspectors of 
various kinds, analysts, collectors of statistics, superin¬ 
tendents of hospitals, etc. 

Work of the Health Department .—Among the principal 
duties of the health authorities are the inspection and 
abatement of unsanitary places and the suppression of nuis¬ 
ances; the inspection of public buildings and sometimes of 
private dwellings with special reference to drainage; the 
removal of garbage and other refuse (in some cities); the 
inspection of the city water supply; the inspection of food, 
particularly milk; the control of certain establishments of an 
offensive character, such as slaughterhouses, soap factories, 
and fertilizer factories; the vaccination of school children 
and often of other persons, as a precaution against smallpox; 
the isolation and quarantine of persons suffering from con¬ 
tagious diseases; the maintenance of pesthouses and hospi¬ 
tals; and the collection of vital statistics. 

One great source of disease in cities is impurity of the 
food supply, especially of milk, and much of the activity 
of the health department is directed toward the inspection 
of milk and other food. Crowded, ill-ventilated, and 
poorly constructed dwellings are another source of dis¬ 
ease, and many cities have undertaken to prevent this 
evil as far as possible through tenement house laws and 


HEALTH PROTECTION 


47 

building regulations requiring dwellings to be constructed 
according to plans prescribed by law. The enforcement 
of these laws often devolves upon the health department, 
which carries out a rigid system of inspection. 

In recent years much more attention than formerly has 
been given to the problems of health administration, and 
great improvement has been made. So efficient is the health 
administration of some of our large cities that the death 
rate in proportion to the population is actually lower than 
it is in many small country towns where little or no atten¬ 
tion is paid to this important branch of administration. 

Fire Protection.—The danger from fire, like that from 
disease, is obviously greater in crowded cities than in 
country districts. Therefore, every large city and most 
small ones maintain an organized fire department. In the 
days of small cities reliance upon voluntary unpaid fire 
companies was the rule, and this is true even to-day in 
many of the smaller towns and cities. In the larger cities, 
however, there are organized professional companies, the 
members of which give all their time to the service and are 
paid regular salaries. New York city has more than 4,000 
men in its fire department, 1,000 horses, some 200 fire en¬ 
gines, ^number of fire boats, and hundreds of thousands of 
feet of hose. At the head of the department there is usually 
an official called a fire chief or fire marshal, appointed by 
the mayor. The rank and file of the department are under 
civil service rules, the employment is of a permanent char¬ 
acter, and many cities have provided a system of pensions 
for members who have grown old or are disabled from 
injuries. 

Great improvement has been made in the,methods of 
fighting fires and in the character of the apparatus employed, 
so that the danger from loss by fire has greatly diminished. 


MUNICIPAL GOVERNMENT 


48 

Furthermore, the more general use of brick and stone for 
building purposes in the larger cities has made the danger 
from fire much less than in the old days when most houses 
were built of wood. Many cities have what are called “fire 
limits,” that is, districts in which it is forbidden to erect 
wooden buildings. 

Municipal Public Utilities.^—People crowded together in 
cities depend largely upon pubhc service companies for 
their water supply, for electric light and gas, for telephone 
service, and for the means of transportation. The furnish¬ 
ing of each of these services, from the very nature of the 
case, tends to become a natural monopoly. Moreover, 
such companies must use the city streets in serving their 
patrons. It follows, therefore, that they must be subject 
to public control, otherwise the public might be charged 
exorbitant prices and the use of the streets by the citizens 
unnecessarily interfered with. Before engaging in a serv¬ 
ice of this kind, therefore, the street railway company 
must secure permission from the city to lay tracks on the 
streets and to operate cars thereon. Likewise a telephone 
or electric light company must have permission to erect 
its poles on the streets or alleys, and a gas or water com¬ 
pany must have authority to tear up pavements and put 
its pipes and mains under the streets. 

Franchises .—The permit thus granted is called a “fran¬ 
chise,” and is in the nature of a contract between the 
city and the company. Public service franchises are often 
of great value to the companies which receive them, for 
the business of these companies in a large city is apt to be 
very profitable. Sometimes the dividends which they pay 
their stockholders are very large, and not infrequently, to 
deceive the public as to the real amount, the profits are 
concealed by “watering” the stock, that is, by increasing 



MUNICIPAL PUBLIC UTILITIES 


49 


it beyond the amount of the capital actually invested. Ex¬ 
perience has shown that in granting franchises certain re¬ 
strictions or conditions should be placed on the companies 
to whom they are granted. 

First of all, the duration of the franchise should be lim¬ 
ited. Formerly, it was not uncommon to grant franchises 
for fifty or one hundred years, and indeed sometimes for an 
indefinite period. The objection to this practice is that 
with the growth of the city, the increased value of the 
franchise resulting from such growth goes entirely to the 
company, while the city is deprived, of the opportunity of 
making a better bargain with the company. A franchise 
ought, however, to be for a period sufficiently long to en¬ 
able the company to derive a reasonable return on its in¬ 
vestment. Obviously, no company could afford to estab¬ 
lish an electric light plant or gas plant if its franchise were 
limited to a period as short as five years. The better opin¬ 
ion now is that twenty or twenty-five years is a reasonable 
period, and the constitution or statutes of a number of 
states forbid the granting of franchises for a longer period. 

, Frequently the franchise contains provisions in regard 
j to the rates to be charged and the quality of service to be 
j performed. In a few states, as New York and Wisconsin, 
i there are state commissions which have power not only to 
supervise the operations of all public service corporations 
but even to fix the rates which they shall be allowed to 
charge. As long as such rates are reasonable, that is, high 
enough to allow the corporation a reasonable return on its 
investment, the courts will not interfere. 

It is now the practice to require public service com¬ 
panies to pay a reasonable compensation for the franchises 
which they receive. This is usually a certain percentage 
of the gross receipts, or sometimes, in the case of street 
Govt. U. S.—4 



MUNICIPAL GOVERNMENT 


50 

railway companies, a certain sum for each car operated. 
When the compensation is a certain percentage of the re¬ 
ceipts, provision ought to be made for examination of the 
books of the company in order to prevent the pubUc from 
being defrauded of its share of the earnings. 

Municipal Ownership.—Sometimes, instead of relying 
upon private corporations to supply the people with water, 
gas, and electric light, the city itself undertakes to do 
this. Very many cities own their waterworks, while some, 
of which Chicago is an example, own their electric light 
plants, and a few own their gas plants. In the cities of 
Europe, municipal ownership and operation of such public 
utilities is very common, and even the telephone and street 
railway services are often supplied by the city. 

The advantages claimed for municipal ownership are that 
better service will be furnished when the business is con¬ 
ducted by the city, because in that case it will be operated 
solely with the interest of the public in view; and, secondly, 
the cost of the service to the community will be less because 
the earning of large dividends will not be the main end in 
view. The principal objection that has been urged against 
municipal ownership in the United States is that “spoils” 
politics still play such an important part in our city gov¬ 
ernment that the management of such enterprises is likely 
to fall into the hands of incompetent politicians and party 
workers. Experience with municipal ownership has been 
satisfactory in a great many cases where it has been tried, 
although the principle upon which it rests is contrary to the 
notions of many people in regard to the proper functions of 
government. 

Municipal Courts.—In every city there are certain in¬ 
ferior courts called by various names, police courts, magis¬ 
trates’ courts, or municipal courts, which have jurisdiction 


MUNICIPAL COURTS 


51 


over offenses against the ordinances of the city. These 
courts constitute a very important part of our governmental 
machinery, and they have rarely received the consider¬ 
ation which their importance requires. They are practi¬ 
cally courts of last resort for a large number of persons 
charged with minor offenses, and from them many igno¬ 
rant persons in the large cities gain their impression of 
American institutions. In the city of New York, for ex¬ 
ample, more than 100,000 persons are brought before these 
courts every year. 

The magistrates who hold municipal courts are often 
men of little or no legal training, and the experience of 
some cities has been that many of them are without in¬ 
tegrity. Recently there has been much discussion of how 
to improve the character and usefulness of these courts, and 
in several cities notable reforms have already been intro¬ 
duced. The Chicago municipal court recently established 
is an excellent example of what can be accomplished in 
this direction. It consists of twenty-eight judges, and the 
salary paid them is sufficiently large to attract well-trained 
lawyers of respectability. The procedure of the court is 
simple and it is so organized as to dispatch rapidly the 
cases brought before it, so that justice is administered 
more swiftly in this city than in any other in America. 

The Commission Plan of Government.—The increasing 
dissatisfaction with the government of our cities by large 
councils has recently led a number of cities to abandon 
the system for a new method known as the commission 
plan. The principal feature of this method is that all the 
powers of government heretofore exercised by the mayor 
and council are intrusted to a small commission usually 
chosen from the city at large. The plan was first put into 
operation in the city of Galveston after the great storm of 


MUNICIPAL GOVERNMENT 


52 

1900 which destroyed the lives of some 6,000 of its citizens 
and left the city in a condition of bankruptcy. 

Under the new charter which was adopted, practically 
all the powers of government were vested in a mayor and 
four commissioners, each of the latter being put in charge 
of one of the five departments into which the administra¬ 
tive service was divided. 

Merits .—Several advantages are claimed for this plan of 
municipal government. In the first place, it does away with 
the evils of the ward system by providing that the com¬ 
missioners shall be chosen from the city at large, and this 
tends to secure the election of men of larger ability. Again, 
it is argued that a small body of men is better fitted to 
govern a city than a large council composed of members 
who consider themselves the special representatives of the 
petty districts from which they are chosen. The affairs 
of a city are necessarily complex and often technical in 
nature and require for their special management skill and 
efficiency. City government is often compared to the man¬ 
agement of a business enterprise like a bank or a manu¬ 
facturing concern, which, as experience, has shown, can be 
better conducted by a small board of directors than by 
the whole body of stockholders. Finally, the concentra¬ 
tion of the powers of the city in a small body of men tends 
to secure a more effective responsibility than can be secured 
under a system in which the responsibility is divided be¬ 
tween the mayor and council. 

Objections .—The chief objections that have been urged 
against the commission plan are that, by intrusting both 
the legislative and the executive power to the same hands, 
it sacrifices the principle of the separation of powers—a 
principle long cherished in America. In the second place, 
by doing away with the council, it sacrifices to a certain 


COMMISSION PLAN OF GOVERNMENT 53 

extent the representative principle and places all the vast 
powers of the city in the hands of a few men—a system cer¬ 
tainly not without its risks and dangers. 

Nevertheless, the system has much to commend it, and it 
is spreading rapidly. Within the first ten years after its 
introduction, in Galveston, it was adopted, with various 
modifications, in about a hundred towns and cities through¬ 
out the country, in Texas, Massachusetts, Iowa, California, 
Oklahoma, Illinois, Kansas, North Dakota, Colorado, and 
other states. A number of other states have passed laws 
permitting its adoption by cities therein. The system is 
still, however, in the experimental stage and it is too early 
to reach any satisfactory conclusions concerning its future. 

Village Government.—Differing from cities chiefly in 
size and in the extent of governmental powers and func¬ 
tions, are small municipal corporations variously called 
villages, boroughs, and incorporated towns. The proce¬ 
dure of incorporation is usually by petition from a certain 
number of the inhabitants, and a popular vote on the 
question. The law relating to the organization of villages 
generally prescribes a minimum population, which is usu¬ 
ally small—sometimes as low as one hundred inhabitants. 

Village Officers .—The principal authority is usually a 
small board of trustees or a council, consisting of from 
three to seven members elected from the village at large, 
though in some instances the number is larger, and some 
villages have the ward system. The village board is 
empowered to adopt ordinances relating to police, health, 
and other matters affecting the good order and welfare 
of the community. They may levy taxes, borrow money, 
open and construct streets, construct drains, establish water 
and lighting plants and the like, and may license ped¬ 
dlers, hack drivers, and other persons who use the streets 


MUNICIPAL GOVERNMENT 


54 

for the conduct of their business. The chief officer of the 
village is the mayor, president, or chairman of the trustees, 
elected either by the voters or by the trustees. There is 
also usually a clerk or recorder, a treasurer, a marshal or 
constable, and sometimes a street commissioner, a justice 
of the peace, and an attorney. 

When the population reaches a certain number, which 
varies in the different states (pp. 25-26), the village organ¬ 
ization is put aside, the community organizes itself into a 
city, takes on a more elaborate organization, receives larger 
powers, and undertakes a wider range of activities. 

References.— Beard, American Government and Politics, chs. 
xxvii-xxviii. Bryce, The American Commonwealth (abridged edi¬ 
tion), chs. xlix-li. Goodnow, City Government in the United States, 
chs. vi-xiii. Hart, Actual Government, ch. ix. Howe, The City the 
Hope of Democracy, chs. i-iv. Strong, The Challenge of the City, 
chs. ii-iii. Wilcox, The American City, chs. ii, iii, iv, v, vi, ix, x, 
xii, xiii. 

Documentary and Illustrative Material.—i. A copy of the city 
charter or municipal code of the state. 2. A copy of the revised or¬ 
dinances of the city. 3. The volume of the last census report dealing 
with the population of cities. 4. The latest census bulletin on statis¬ 
tics of cities. 5. A map of the city showing its division into wards, 
police and fire districts, sewer districts, etc., and the location of the 
city building, police stations, fire stations, the source of the water 
supply, parks, slum districts, etc. 6. A copy of the last city budget 
and tax ordinance. 7. A copy of a paving or other public improve¬ 
ment ordinance. 

Research Questions 

I. What is the population of the largest city in your state? its 
area? How many cities in your state have a population of 8,000 or 
over? What percentage of the total population is found in the cities? 
How much faster has the city population grown during the past 
decade than the rural population? What percentage of the popula¬ 
tion of your city is foreign-born? 


RESEARCH QUESTIONS 


55 

2. WTiy do cities require a different form of government from that 
which is provided for rural communities? 

3. What are the provisions in the constitution of your state, if any, 
in regard to the government of cities? 

4. How many representatives does the largest city of your state 
have in the legislature? What proportion of the total membership 
is it? Are there any constitutional restrictions upon the number of 
members of the legislature which may be elected from any one city? 

5. Are there any restrictions upon the power of the legislature of 
jmur state to enact special legislation applying to a single city? If so, 
what are they? 

6. If you live in a city, when did it receive its present charter? 
What are the provisions in the charter relating to the organization 
and powers of the city? 

7. Do you think the people of a city should be allowed to frame 
their own charter and govern themselves without interference on the 
part of the state legislature? 

8. How many members are there in the city council of your city? 
Are they chosen by wards or from the city at large? What is their 
term and salary? In what ward do you live, and what is the name of 
the alderman or aldermen from that ward? 

9. For what term is the mayor of your city or town elected? To 
what political party does he belong? Does he preside over the meet¬ 
ings of the city council? What officers, if any, does he appoint? 

10. Name the administrative departments in your city. Are they 
organized according to the board system, or is each under the con¬ 
trol of a single official? 

11. Does your city have a civil service law under which appoint¬ 
ments to the municipal service are made on the basis of merit? If so, 
what are its principal provisions? 

12. Does the city own and operate its waterworks plant, or is the 
water supply furnished by a private company? Does the city own 
and operate any of its other public utilities, such as the electric light 
or gas plant? If not, what are the terms of the franchises under which 
they are operated by private companies? Do these companies pay 
the city anything for the privilege of using the streets? 

13. What are the duties of the public utilities commissions in New 
York and Wisconsin? Do you think the policy of regulation prefer¬ 
able to municipal ownership and operation? 


56 


MUNICIPAL GOVERNMENT 


14. How is the cost of street and sidewalk paving met in your 
city,—by special assessment on the property benefited, or by appro¬ 
priation out of the city treasury? 

15. What is the method of garbage disposal in your city? 

16. Describe the organization and activities of the health author¬ 
ity in your city. What does it do to secure a supply of clean and 
pure milk? 

17. Are there any improvement leagues or civic organizations 
working for the uplift and good government of your city? What are 
their methods, and what are some of the specific services they have 
rendered? 

18. What are the principal sources of revenue in your village or 
city? If there are any saloons, what is the amount of the license 
fee paid by them? What is the rate of taxation on the taxable prop¬ 
erty? 


CHAPTER III 


THE STATE GOVERNMENTS 

Place of the States in Our Federal System.—Proceed¬ 
ing upward from the county, township, and city, we come 
to the state, the authority to which the local governments 
described in the preceding chapters are all subject. The 
consideration of state government properly precedes the 
study of national government, not only because the states 
existed before the national government did, and in a sense 
furnished the models upon which it was constructed, but 
because their governments regulate the larger proportion 
of our public affairs and hence concern more vitally the 
interests of the mass of people than does the national 
government. 

The states collectively make up our great republic, but 
they are not mere administrative districts of the union 
created for convenience in carrpng on the affairs of national 
government. They do not, for example,^bear the same re¬ 
lation to the union that a county does to the state, or a 
township to the county. A county is nothing more than a 
district carved out of the state for administrative con¬ 
venience, and provided with such an organization and 
given such powers of local government as the state may 
choose to give it. The states, on the other hand, are not 
creations of the national government; their place as con¬ 
stituent members of the union is determined by the Federal 


57 


THE STATE GOVERNMENT 


58 

Constitution, framed by the people of the United States, 
and their rights and obligations are fixed by the same 
authority. Each state, however, determines its own form of 
government and decides for itself what activities it will 
undertake. 

Division of Powers.—The Federal Constitution has 
marked out a definite sphere of power for the states, on 
the one hand, and another sphere for the national govern¬ 
ment on the other, and each within its sphere is supreme. 
Upon the domain thus created for each the other may not 
encroach. Each is kept strictly within its own constitu¬ 
tional sphere by the federal Supreme Court, and the bal¬ 
ance between the union and its members is harmoniously 
preserved. 

The states were already in existence with organized gov¬ 
ernments in operation when the national government was 
created. The founders of the national government con¬ 
ferred upon it only such powers as experience and reason 
demonstrated could be more effectively regulated by a 
common government than by a number of separate govern¬ 
ments; they left the states largely as they were, and limited 
their powers only so far as was necessary to establish a more 
effective union than the one then existing. Experience 
had taught them, for example, that commerce with foreign 
countries and among the states themselves should be regu¬ 
lated by a single authority acting for the entire country: 
only in this way could uniformity be secured, and uni¬ 
formity in such matters was indispensable to the peace and 
perpetuity of the union. Accordingly, the national govern¬ 
ment was vested with power over this and other matters 
which clearly required uniformity of regulation, and the 
remaining powers of government were left with the states, 
where they had always been. Thus it came about that the 


DIVISION OF POWERS 


59 

national government was made an authority of enumerated 
or delegated powers, while the states have reserved powers. 

Prohibitions .—It was thought wise, however, to pro¬ 
hibit both the national government and those of the states 
from doing certain things, and thus we find provisions in 
the Federal Constitution forbidding both governments from 
granting titles of nobility, from passing ex post facto laws, 
bills of attainder, etc. Likewise the states were prohibited 
from entering into treaties with foreign countries, from 
coining money, from impairing the obligation of contracts, 
and from passing laws on certain other subjects which it 
was clearly unwise to leave to state regulation. 

Powers of the States.—The powers left to the states, 
unlike those conferred upon the national government, can¬ 
not be enumerated. They are so varied in character, and 
so extensive, that an attempt to enumerate them would in¬ 
volve cataloguing all the multitudinous business and social 
relationships of life. The powers of the national government 
seem much greater by comparison than those of the states, 
partly because they are set forth in the Constitution and 
partly because of their application throughout the entire 
country, but in reahty they are not only far less numerous 
but affect less vitally the great mass of the people. The 
powers of the states include such matters as the regulation 
of the ownership, use, and disposition of property; the con¬ 
duct of business and industry; the making and enforcing of 
contracts; the conduct of religious worship; education; mar¬ 
riage, divorce, and the domestic relations generally; suf¬ 
frage and elections; and the making and enforcement of the 
criminal law. In the division of governmental powers be¬ 
tween the nation and the state, says Bryce, the state gets 
the most and the nation the highest, and so the balance 
between the two is preserved. 


6o 


THE STATE GOVERNMENT 


“An American,” says Mr. Bryce, “may, through a long life, never 
be reminded of the federal government except when he votes at presi¬ 
dential and congressional elections, buys a package of tobacco bear¬ 
ing the government stamp, lodges a complaint against the post 
office, and opens his trunks for a customhouse officer on the pier at 
New York when he returns from a tour in Europe. His direct taxes 
are paid to officials acting under state laws. The state or local au¬ 
thority constituted by state statutes registers his birth, appoints his 
guardian, pays for his schooling, gives him a share in the estate of his 
father deceased, licenses him when he enters a trade (if it be one need¬ 
ing a license), marries him, divorces him, entertains civil actions 
against him, declares him a bankrupt, hangs him for murder; the 
police that guard his house, the local boards which look after the 
poor, control highways, impose water rates, manage schools—all these 
derive their legal powers from his state alone.” 

Rights and Privileges of the States as Members of the 
Union.—The states have certain rights and privileges which 
are guaranteed them by the Federal Constitution, and of 
which they cannot be deprived by the national government 
without their consent. 

Republican Government. —Thus it is made the duty of 
the United States to guarantee to every state in the union 
a republican form of government, that is, a government by 
the chosen representatives of the people of the state. In 
a few cases rival governments have been set up in a state, 
each claiming to be the legitimate government and en¬ 
titled to the obedience of the people; the one recognized 
by the federal authorities has always prevailed. 

Protection Against Invasion.—It is also made the duty of 
the national government to protect the states against in¬ 
vasion. This is right and proper, since the states are for¬ 
bidden by the Constitution to keep ships of war or troops 
in times of peace. 

Protection Against Domestic Violence. —Again, it is made 
the duty of the national government to protect the people 


STATES AS MEMBERS OF UNION 61 

of the states against domestic violence arising from insur¬ 
rection or riots, provided that application has been made by 
the proper state authorities. The purpose of this proviso 
is to remove the temptation to federal interference in state 
affairs for political or other reasons against the wishes of 
the people of the state. The ordinary procedure for the 
suppression of a local disturbance is for the sheriff of the 
county, or the mayor of the city, to make use of the local 
police, and if necessary he may call upon the citizens to 
come to his aid. If this is not effective, the governor may 
be called upon to order out the state militia for the sup¬ 
pression of the riot. If, however, the riot should spread 
and assume such proportions that the power of the state 
and local authorities is insufficient, it becomes the right and 
duty of the governor, or the legislature if it be in session, to 
call on the President of the United States for the assistance 
of national troops. If in the President’s judgment the situa¬ 
tion is one which warrants federal intervention, he sends 
a detachment of troops from a near-by military post to 
restore order. Many times in our history federal troops 
have been used to put down riots where the state authori¬ 
ties had shown themselves incapable of maintaining order; 
a notable example being in connection with the Goldfield 
(Nevada) miners’ strike riots of 1907. 

Ordinarily the President has no lawful right to interpose 
in the affairs of the state by the employment of troops un¬ 
til he has received an application from the governor or the 
legislature, but if the disturbance is one which interferes 
with the operations of the national government or with 
the movement of interstate commerce, the President may 
intervene whenever in his opinion the situation calls for 
federal action. Thus during the Chicago strike riots of 
1894, President’Cleveland ordered a detachment of federal 


62 


THE STATE GOVERNMENT 


troops to that city against the protests of the governor, 
upon being assured that the strikers were interfering with 
the movement of the mails and with the conduct of inter¬ 
state commerce and were also disregarding the writs and 
processes of the United States courts. The interference 
of the President was criticized by some persons, but the 
great body of citizens approved his course, and the United 
States Supreme Court upheld the validity of his action. 

Other Rights of the States .—Among the other rights of 
the states under the Federal Constitution may be mentioned 
the right of equal representation in the senate, a right of 
which no state can be deprived without its consent, and 
the right of territorial integrity: no new state may be 
created within the jurisdiction of another state, nor may 
any state be formed by the junction of two or more states 
or parts of states, without the consent of the states con¬ 
cerned. 

Obligations and Duties of the States.—Rights and priv¬ 
ileges usually imply obligations, and so we find that the 
states owe certain duties to one another and to the union 
of which they are a part, and the harmony and success of 
the federal system are dependent in a large measure upon 
the performance of these duties in good faith. 

Full Faith and Credit .—First of all, each state must give 
full faith and credit to the acts, judicial proceedings, and 
records of the other states. This means, for example, that 
a properly authenticated copy of a will or deed duly exe¬ 
cuted in one state will be taken notice of and rights de¬ 
pending on it will be enforced in other states as though the 
instrument were made therein. Likewise, a marriage legally 
celebrated in one state will usually be treated as valid in 
another state, and the facts of a case at law will be recog¬ 
nized in other states without the necessity of retrial. The 


OBLIGATIONS AND DUTIES OF STATES 63 

provision as to full faith and credit does not mean that one 
state must enforce within its borders the laws of other 
states, or that its courts in reaching their decisions are 
bound by the decisions of the courts of its sister states. 
As a matter of practice, however, courts in one state in 
deciding difficult questions of law will examine the deci¬ 
sions of the courts of other states on similar points for their 
own enlightenment, and will show respect for these deci¬ 
sions, the degree of deference depending on the standing of 
the judges rendering the decision and upon the similarity of 
the laws and policies of the states concerned. 

Surrender of Fugitives from Justice. —In the next place, it 
is made the constitutional duty of the executive of each 
state to surrender criminals escaping from other states, in 
order that they may be returned for trial and punishment 
in the state from which they have fled. The demand for 
the surrender of such fugitives is made by the governor of 
the state from which the criminal has fled, and the gover¬ 
nor upon whom the demand is made ought to comply with 
it unless for very substantial reasons. There is no way, 
however, by which this obligation may be enforced, and 
there have been many cases where governors have refused 
to deliver up criminals escaping from other states—usually 
for the reason that, in the governor’s opinion, the fugitive 
would not receive a fair trial in the state from which he 
had fled. 

Treatment of Citizens of Other States. —Still another obli¬ 
gation imposed by the Federal Constitution on the states 
is that of treating the citizens of other states as they treat 
their own citizens, i. e., without discrimination. But this 
obligation has reference rather to civil rights than to politi¬ 
cal privileges. It does not mean that an illiterate man who 
is allowed to vote in Illinois may go to Massachusetts and 


THE STATE GOVERNMENT 


64 

vote where an educational qualification for the suffrage is 
required; nor does it mean that a woman who is allowed to 
practice law in one state may therefore practice in another 
state which excludes its female citizens from engaging in 
that profession. What the provision does mean, is that 
whatever privileges and immunities a state allows to its 
own citizens, it must allow the citizens of other states on the 
same terms, and subject to the same conditions and no more. 
Thus a state cannot subject the citizens of other states to 
higher taxes than are imposed upon its own citizens. 

Other Obligations. —Finally, it goes without saying that 
it is the duty of each state to treat its sister states in the 
spirit of comity and courtesy; to carry out the mandates of 
the Federal Constitution relating to the election of sena¬ 
tors, representatives, and presidential electors so as to 
keep up the existence of the national government; and, in 
general, to perform in good faith all their other obligations 
as members of the union, without the performance of which 
the republic would be a mere makeshift. The existence of 
the states is essential to the union, and their preservation 
is as much within the care of the Constitution as is the 
union itself. Indeed, the Constitution in all its parts, said 
the Supreme Court of the United States in a famous case, 
looks to an indestructible union of indestructible states. 

The State Constitution; how Framed.—The govern¬ 
mental organization of each of the states is set forth in a 
written instrument called a constitution. Unlike the con¬ 
stitutions of some of the European states, which were 
granted by kings, and unlike, also, those of the British 
self-governing colonies, which were enacted by Parliament, 
all the American constitutions now in existence were framed 
by constituent bodies representing the people, and in most 
cases they were approved by the people before they went 


THE STATE CONSTITUTION 


65 

into effect. As Mr. Bryce has remarked, the American state 
constitutions are the oldest things in the political history 
of America. Before the Federal Constitution was framed 
each of the thirteen original states had a constitution of 
its own, most of them being framed by popular conventions 
chosen especially for the purpose. 

Later, when a territory asked to be admitted to the 
union as a new state. Congress, through what is called an 
“enabling act,” empowered the people of the territory to 
choose a convention to frame a constitution which, when 
submitted to the voters and approved by them, became the 
fundamental law of the new state. In a number of cases, 
however, the people of the territory went ahead on their 
own initiative, and without the authority of an enabling 
act framed their constitution and asked to be admitted, 
and sometimes they* were admitted as though they had 
acted under the authority of Congress. Whenever an ex¬ 
isting state wishes to frame a new constitution for itself, 
the usual mode of procedure is for the legislature either to 
pass a resolution calling a convention, or to submit to the 
voters the question of the desirability of a new constitu¬ 
tion. A resolution calling a convention usually requires an 
extraordinary majority of both houses of the legislature, two 
thirds of the members being the most common rule. 

Ratification of New Constitutions. —When the draft of 
the constitution has been completed by the convention, it 
is usually submitted to the voters of the state at a general 
or a special election, and if it is approved by a majority of 
those voting on the constitution, or (in some states) of those 
voting at the election, it supersedes the old constitution 
and goes into effect on a day prescribed. In some instances, 
however, new constitutions were not submitted to popular 
vote; instead, the convention assumed the right to put them 
Govt. U. S.—5 


66 


THE STATE GOVERNMENT 


into effect without popular approval. Of the twenty-five 
state constitutions adopted before the end of the eighteenth 
century, only three were submitted to the voters for their 
approval, but as time passed the practice of giving the peo¬ 
ple an opportunity to approve or reject proposed constitu¬ 
tions became the rule. In the twenty years between 1890 
and 1910 eight new constitutions were approved by the 
people, and only four were put into force without popular 
ratification, namely, those of Mississippi (1890), South Car¬ 
olina (1895), Delaware (1897), and Louisiana (1898). 

Frequency of New Constitutions.—The frequency with 
which the states revise their constitutions varies in differ¬ 
ent sections of the country. In New England new con¬ 
stitutions are rare, while in the states of the West and the 
South new constitutions are framed, on an average, at 
least once in every generation and sometimes oftener. 
Since the Revolution more than two hundred constitu¬ 
tions have been made by the states, though some of them 
never went into operation. Several of the states within a 
period of less than one hundred years have had as many 
as six, and a few have had even more. The constitution of 
Massachusetts of 1780, with several subsequent amend¬ 
ments, is still in force; but outside of New England there 
are few constitutions that are more than thirty years old. 
Some of the states, indeed, have inserted provisions in their 
constitutions making it the duty of the legislature at stated 
intervals to submit to the voters the question of calling a 
convention to revise the existing constitution or to adopt 
an entirely new one. In this way the people are given an 
opportunity at regular intervals of determining whether the 
constitution under which they live shall be revised or super¬ 
seded by a new one, independently of the will of the legis¬ 
lature. 


CONTENTS OF STATE CONSTITUTIONS 


67 


Contents of State Constitutions.—The early state con¬ 
stitutions were brief documents and dealt only with im¬ 
portant matters of a fundamental and permanent char¬ 
acter. They were remarkably free from detail and rarely 
contained more than 5,000 words. As time passed, however, 
there was an increasing tendency to incorporate provisions 
in regard to many matters that had formerly been left to 
the legislature to be regulated by statute, until some of 
the constitutions of the present day are bulky codes con¬ 
taining detailed provisions concerning a great variety of 
matters that might more properly be dealt with by statute. 
The constitution of Virginia, for example, has expanded from 
a document of a few pages to one of seventy-five, from an 
instrument of about 1,500 words to one of more than 30,000. 
The present constitution of Alabama contains about 33,000 
words; that of Louisiana, about 45,000; and that of Okla¬ 
homa, about 50,000. The Virginia constitution contains a 
lengthy article on the organization of counties; one on the 
government of cities, constituting a code almost as elabo¬ 
rate as a municipal corporations act; one on agriculture and 
immigration; one on corporations, containing fourteen sec¬ 
tions; one on taxation and finance, etc. The constitution 
of Oklahoma contains an article of seven sections on fed¬ 
eral relations, one of which deals with the liquor traffic; elab¬ 
orate provisions regarding fhe referendum and initiative; 
a section describing the seal of the state; a detailed enum¬ 
eration of those who are permitted to accept railroad passes; 
an article on insurance; one on manufactures and com¬ 
merce; and one on alien and corporate ownership of lands. 

Parts of a Constitution .—A typical constitution consists 
of several parts: (i) a preamble; (2) a bill of rights; (3) a 
series of provisions relating to the organization of the 
government and the powers and duties of the several de- 


68 


THE STATE GOVERNMENT 


partments; (4) a number of miscellaneous articles dealing 
with such matters as finance, revenue and debts, suffrage 
and elections, public education, local government, rail¬ 
roads, banks, and other corporations generally; (5) an 
article describing the procedure by which amendments 
may be proposed and ratified; and (6) a schedule. Many 
constitutions contain an article defining the boundaries of 
the state, and most of them one on the distribution of the 
powers of government. Some of the newer constitutions 
also prescribe numerous limitations upon the legislature, so 
great is the popular mistrust of legislatures to-day; while 
others lay down various rules as to the procedure of the 
legislature. The schedule contains provisions, mainly of 
a temporary character, for submitting the constitution to 
the voters and making the necessary arrangements for 
putting the new constitution into effect. 

The Bill of Rights, says Bryce, is historically the most 
interesting part of the state constitution, and if we may 
judge by the space devoted to these provisions and the at¬ 
tention paid to their framing, they constitute a very im¬ 
portant part of the constitution. In a sense they are the 
lineal descendants of great English enactments like Magna 
Charta, the Bill of Rights, and the Act of Settlement, and of 
the various declarations of the Revolutionary Congresses 
in America. They represent an attempt to state the more 
important fundamental rights of the citizens, and -are de¬ 
signed to create a sphere of individual freedom free from the 
encroachments of every governmental authority. They 
consist, therefore, both of limitations upon the government 
and of statements of the rights of man. 

Some Provisions of the Bills of Rights .—Examining these 
bills of rights, we find that they all contain declarations in 
favor of freedom of religious worship, freedom of assembly, 


THE BILL OF RIGHTS 69 

freedom of speech and of the press, and most of them for¬ 
bid the establishment of a state church or the appropria¬ 
tion of money for the establishment or support of any 
religious denomination. Most of them contain declara¬ 
tions providing for trial by jury in criminal cases, indict¬ 
ments by grand jury, the privilege of the writ of habeas 
corpus, the right of the accused to a speedy and public trial; 
a declaration of the right of citizens to bear arms; the pro¬ 
hibition of excessive bail, cruel and unilsual punishments, 
general search warrants, and imprisonment for debt; the pro¬ 
hibition of titles of nobility, ex post facto laws, and bills of 
attainder; and provisions forbidding the taking of private 
property except for public purposes and then only when just 
compensation is made. Many of them contain philosophi¬ 
cal enunciations of political doctrines such as the assertion 
that all governments originate with the people, and are in¬ 
stituted solely for their good; that all men are equal; that 
all power is inherent in the people; and that the people 
have at all times the right to alter, reform, or abolish their 
government. Some of the newer constitutions declare that 
monopolies and perpetuities are contrary to the principles 
of free government; that every citizen shall be free to ob¬ 
tain employment wherever possible; that a long lease of 
office is dangerous to the liberties of the people; that aliens 
shall nave the same rights of property as citizens; and so on. 

The real importance of the bills of rights, now that exe¬ 
cutive tyranny is a thing of the past, is not very great, but 
they are nevertheless interesting as formulations of Ameri¬ 
can ideas of government and liberty. 

Amendment of State Constitutions.—The practice of 
inserting in the constitution many provisions which are 
temporary in character, makes frequent alteration a ne¬ 
cessity if the constitution is to meet the rapidly chang- 


70 


THE STATE GOVERNMENT 


ing needs and conditions of the state. Some of the early 
constitutions contained no express provision for their own 
amendment, but as time passed changes became mani¬ 
festly necessary, and in time they were all amended or 
supplanted entirely by new ones, notwithstanding the ab¬ 
sence of amending provisions. Ultimately the advantage 
of pointing out in the constitution a legal and orderly way 
of amendment came to be generally appreciated, and at the 
present time all of the constitutions contain amending pro¬ 
visions. These clauses provide that amendments may be 
proposed, either by a convention called by the legislature, 
or by the legislature itself, usually by an extraordinary ma¬ 
jority; in either case the proposed amendment must be 
submitted to the voters for their approval, and it becomes 
a part of the constitution only if ratified by a majority of 
those voting on the proposed amendment or, in some states, 
by a majority of those voting at the election at which the 
proposed amendment is submitted. A new method of 
amendment by popular initiative was adopted in Oregon 
in 1902. According to this method a proposed amendment 
may be framed by the people by petition and submitted 
to a popular vote without the necessity of the interven¬ 
tion of the legislature in any form. 

In spite of the restrictions imposed, most of the constitu¬ 
tions are frequently amended. During the decade from 
1894 to 1904, 412 amendments were proposed by the legis¬ 
latures of the several states, and of these 230 were ratified. 
California proposed 38, of which 20 were ratified; Louisiana 
22, of which 15 were ratified; Mississippi 21, of which 15 
were ratified; and so on. At the general election of 1906, 
no less than 60 amendments were voted on by the people 
of the different states, and 16 others were awaiting the ac¬ 
tion of the legislatures then in session. 


AMENDMENl OF STATE CONSTITUTIONS 


71 


References.— Beard, American Government and Politics, chs. xxii- 
xxiii. Bryce, The American Commonwealth (abridged edition), 
chs. xxxiv-xxxv. Dealey, Our State Constitutions, chs. ii-iii. Hart, 
Actual Government, ch. vi. Hinsdale, The American Government, 
chs. xl, xli, xlix, 1 . Wilson, The State, secs. 1^87-1095. Wil¬ 
loughby, Rights and Duties of Citizenship, ch. x. Willoughby, 
The American Constitutional System, chs. ii-x. 

Documentary and Illustrative Material.—i. Thorpe’s Constitu¬ 
tions and Organic Laws, or Poore’s Charters and Constitutions, both 
published by the Government Printing Office. 2. Pamphlet copies 
of state constitutions can usually be obtained from the secretaries of 
state of the various states. 3. The legislative manual of the state, 
where usually a review of the constitutional history of the state may 
be found. 

Research Questions 

1. In what two senses is the word “state” used? In what sense is 
New York a state and in what sense is it not? 

2. Were the states ever sovereign? What were the two views in 
this country prior to the Civil War in regard to the sovereignty of 
the states? 

3. The constitution and laws of the United States are declared to 
be supreme over those of the states; what is the meaning of that pro¬ 
vision? Does that mean that any law passed by Congress will over¬ 
ride a conflicting law passed by a state, even though the law passed 
by the state is clearly within its powers? 

4. Distinguish between reserved powers and delegated powers. 

5. Do you believe the powers of the national government should be 
increased so as to include the regulation of such matters as marriage 
and divorce, the business of corporations, factory labor, and insur¬ 
ance? 

6. What is the purpose of the commissions on uniform legislation 
in the different states, and what are they seeking to accomplish? 
Is there such a commission in your state? 

7. Which of the following matters fall within the jurisdiction of 
the United States and which within the jurisdiction of the states? 
(i) the levying of tariff duties, (2) the transfer of land, (3) the build¬ 
ing of lighthouses, (4) the protection of religious worship, (5) the 
granting of passports, (6) punishment of crime, (7) the granting of 


THE STATE GOVERNMENT 


72 

pensions, (8) the regulation of labor in mines and factories, (9) the 
protection of the public health, (10) the support of schools, (ii) the 
regulation of navigation, (12) the erection of fortifications. 

8. Name some powers that may be exercised by both Congress 
and the states; some that may be exercised by neither; some that may 
be exercised by the states only with the consent of Congress. 

9. May the United States government coerce a state? Suppose 
a state should refuse or neglect to perform its constitutional duties 
as a member of the union, could it be punished or compelled to ful¬ 
fill its obligations? 

10. May a state be sued by a citizen of the state? by a citizen of 
another state? by another state itself? 

11. Suppose a state should refuse to pay a debt which it has in¬ 
curred, has the person to whom the debt is due any remedy? 

12. Will a divorce granted in Nevada to a citizen of Massachu¬ 
setts be recognized as valid in Massachusetts? 

13. Suppose a man, standing on the New Jersey side of the Dela¬ 
ware River, should fire a gun across the river and kill a man in Penn¬ 
sylvania, would the governor of New Jersey be bound to surrender 
the criminal upon demand of the governor of Pennsylvania, in order 
that he might be tried in Pennsylvania?- 

14. What is the difference between a constitution, a statute, and 
a charter? Between a written and an unwritten constitution? 

15. When was the present constitution of your state adopted? 
Was it submitted to the voters before being put into effect? How 
many constitutions has the state had since its admission to the union? 
Were they all adopted by popular ratification? Who was the dele¬ 
gate from your county to the last constitutional convention? 

16. How may the constitution of your state be amended? Is a 
majority of those voting at the election necessary to ratify, or only a 
majority of those voting on the proposed amendment? How many 
times has the present constitution of your state been amended? 
Do you think the method of amendment is too rigid? 

17. What is the purpose of a preamble to a constitution? Does 
the preamble of your constitution contain a recognition of God? 

18. What are the provisions in the bill of rights to your consti¬ 
tution in regard to the rights of an accused person? in regard to 
freedom of the press? freedom of assembly? freedom of worship? 
right of the people to change their government? 


CHAPTER IV 


THE STATE LEGISLATURE 

Powers of the State Legislatures. —The powers of the 
state legislature, unlike those of the city council and those 
of the Congress of the United States, are not set forth in 
the constitution. In general, a state legislature may exer¬ 
cise any powers which are not denied to it by the Consti¬ 
tution of the United States or by the constitution of the 
state. Its powers, in other words, are residuary in charac¬ 
ter, rather than delegated or granted. 

Limitations .—In recent years, however, mainly on ac¬ 
count of the popular distrust in which our legislatures have 
come to be held, numerous limitations upon their powers 
have been imposed by the constitutions of many states. 
Thus they are frequently forbidden absolutely to pass 
local or special laws where a general law is applicable, or 
they are allowed to enact such laws only under certain re¬ 
strictions. In most states, also, the legislature cannot run 
the state into debt beyond a certain amount, and its power 
to impose taxes and appropriate money is generally re¬ 
stricted. Finally, its power of legislation has been limited 
by the present practice of regulating many important mat¬ 
ters in the constitution itself. In the newer constitutions 
especially we find a large number of provisions relating to 
schools, cities, towns, railroads, corporations, taxation, and 
other matters. To that extent, therefore, the legislature is 
deprived of its power of legislation on these subjects. 

73 


74 


THE STATE LEGISLATURE 


Extent of the Legislative Power .—In spite of the numerous 
restrictions, however, the power of the legislature is very 
large. It enacts the whole body of criminal law of the 
state; makes laws concerning the ownership, use, and dis¬ 
position of property, laws concerning contracts, trade, 
business, industry, the exercise of such professions as law, 
medicine, pharmacy, and others; laws relating to the gov¬ 
ernment of counties, towns, cities, and other localities; 
laws concerning the public health, education, charity, mar¬ 
riage and divorce, and the conduct of elections; laws con¬ 
cerning railroads, canals, ferries, drainage, manufacturing, 
eminent domain, and a great variety of other matters. The 
subjects concerning which the legislatures may enact laws 
are indeed so numerous and varied that it would be impossi¬ 
ble to enumerate them all. For that reason the legislature 
is by far the most important branch of the state govern¬ 
ment, and it is highly important that it should be composed 
of honest, intelligent, and efficient members. Unfortu¬ 
nately, however, in many states the legislature has declined 
in public esteem. In the early days of our history the 
legislative branch of the government was all-powerful. It 
was not only practically unlimited as to its power of legis¬ 
lation, but it was intrusted with the choice of many im¬ 
portant officers of the state. Now, however, there is a dis¬ 
position to cut dowm its powers and place restrictions on 
the exercise of those that are left to it. In many states the 
people have secured the power to legislate for themselves by 
means of the initiative and referendum (pp. 85-89); and, 
to diminish the power of the legislature to enact useless 
laws, many constitutions limit the length of the sessions to 
forty or sixty days in the hope of compelling it to devote 
its time to the consideration of important measures of 
general interest. 


STRUCTURE OF THE LEGISLATURE 75 

Structure of the Legislature.—Each of the state legis¬ 
latures to-day consists of two houses, though at first several 
states followed the example of the Congress of the Confed¬ 
eration and tried the single-chamber system. Those 
states, however, soon found that the disadvantages of a 
single-chambered body were serious, and they made haste 
to substitute legislatures with two houses. The principal 
advantage of a bicameral legislature is that each house 
serves as a check upon the haste and precipitancy of the 
other and thus secures more careful consideration of the 
measures enacted. 

The lawmaking body popularly known as the legislature 
is officially so designated in some states, but in others the 
formal name is the general assembly or the legislative as¬ 
sembly, and in two, Massachusetts and New Hampshire, 
the colonial title, “general court,” is still retained. In all 
the states the upper house is styled the senate. In most 
of them the lower chamber is known as the house of repre¬ 
sentatives, though in a few it is styled the assembly and 
in three the house of delegates. 

Both houses of the state legislature represent the people, 
and both are chosen by the people. The principal differ¬ 
ences in their make-up are, that the senate is a smaller body 
and therefore each senator represents a larger constituency, 
the senators are frequently chosen for a longer term, and 
usually the senate is vested with special functions such as 
the approval of executive appointments to office, and the 
trial of impeachment cases. 

The State Senate .—The size of the senate varies from 
twenty members in Nevada to sixty-three in Minnesota, the 
average number being about thirty. In about two thirds 
of the states, the term of senators is four years; in New 
Jersey it is three years; in Massachusetts and Rhode Island 


THE STATE LEGISLATURE 


76 

it is one year; in the remaining states it is two years. In 
about one third of the states the terms of the senators and 
the representatives are the same. In some states the sena¬ 
tors are divided into classes, and only half of them retire 
at the same time. 

The House of Representatives. —The house of representa¬ 
tives everywhere is a more numerous body than the senate, 
and in a few states the disproportion is very great. Thus 
the New Hampshire legislature with a senate of 24 mem¬ 
bers has a house of representatives of 392 members, the 
largest in any state, a body about as large as the national 
house of representatives. The Connecticut legislature is 
composed of a senate of 35 members and a house of repre¬ 
sentatives of 250 members; Vermont has a senate of 30 
members and a house of representatives of 246; Massa¬ 
chusetts has a senate of 40 members and a house of 240. 
The smallest house of representatives is that of Nevada, 
consisting of 49 members. 

Apportionment of Senators and Representatives. —Senators 
and representatives are apportioned among districts, usu¬ 
ally on the basis of population. Political units, however, 
are often taken into consideration, and in some states such 
units rather than the number of inhabitants are the deter¬ 
mining element. Thus it is frequently provided that each 
county shall be entitled to one senator, though the popula¬ 
tion of some counties may be many times as great as that 
of other counties. In some of the New England states the 
inequalities of representation are so glaring as to constitute 
a great injustice to the more populous towns. In Connect¬ 
icut, for example, the members of the lower house are dis¬ 
tributed among the towns of the state, without regard to 
their population. As a result each of the small towns of 
Union, Hartland, Killingworth, and Colebrook, with an 


STRUCTURE OF THE LEGISLATURE 


77 

average population of less than i,ooo persons has two 
representatives, while New Haven with 133,000 inhabit¬ 
ants, has only two. Hartford with about 99,000 has two, 
and so has Bridgeport with a population of 102,000, and 
Waterbury with a population of 73,000. These four cities 
comprise about one third the population of the state, but 
they have only one thirty-second part of the membership of 
the house of representatives. A similar system of represen¬ 
tation exists in Vermont and Rhode Island, though by 
recent amendment to the constitution of Rhode Island pro¬ 
vision has been made for a more equitable system of rep¬ 
resentation. 

Moreover, as a result of “gerrymandering” by the politi¬ 
cal party in control of the legislature the legislative districts 
are frequently so constructed as to give the majority party 
more than its fair share of representatives. As a result 
great inequalities of representation among the different 
counties are frequently found. 

In order to prevent the large cities from controlling the 
legislature and thereby dominating the state, a few con¬ 
stitutions have undertaken to limit their representation in 
the legislature. Thus in New York it is provided that no 
county, however populous, shall have more than one third 
of all the representatives, and a somewhat similar provi¬ 
sion is contained in the constitution of Pennsylvania. 

Minority Representation in the Legislature.—Where 
there are two political parties in the state, it is worth con¬ 
sidering whether some provision should not be made for 
allowing each party to choose a number of representa¬ 
tives in proportion to its numerical strength, or at least for 
allowing the weaker party some representation in the legis¬ 
lature. It not infrequently happens under the present 
system that the majority party in the state succeeds in 


THE STATE LEGISLATURE 


78 

electing nearly all the representatives, leaving the other 
party practically without representation, although it may 
be strong enough to cast hundreds of thousands of votes in 
the state as a whole. In the Oregon state election of 1906, 
for example, the Republican party with only 55 per cent of 
the voting strength elected eighty-erght members of the leg¬ 
islature, while the Democratic party, though casting 34 per 
cent of the total vote, elected only seven representatives. 
It is sometimes said that such a system of representation 
is not in harmony with the genius of representative govern¬ 
ment and is in violation of the rights of the minority. 

The present constitution of Illinois contains a clause 
which makes it possible for the minority party in each of 
the fifty-one legislative districts into which the state is 
divided to elect at least one of the three representatives to 
which the district is entitled. Each voter is allowed three 
votes, and he may give one vote to each of three candi¬ 
dates, or he may give all three to one candidate, or two to 
one candidate and one to another. Usually the party hav¬ 
ing the majority in the district elects two candidates and 
the minority party one, the voters of the latter party con¬ 
centrating all their votes on the one candidate. 

Legislative Sessions.—In the great majority of states 
the legislatures hold regular sessions every two years. In 
Massachusetts, Rhode Island, New York, and New Jersey, 
which have annual elections of representatives, the legisla¬ 
ture meets every year in regular session; and in two states 
also (Georgia and South Carolina) where representatives 
are chosen biennially the legislature meets annually. Ala¬ 
bama is contented with a session once in every four years. 
In all the states the governor is empowered to call extraordi¬ 
nary sessions for the consideration of special matters of an 
urgent character. 


LEGISLATIVE SESSIONS 


79 


There is a popular belief that legislatures waste much of 
their time in the consideration of petty matters, and in 
many states the constitution either limits the length of the 
session,—sometimes to forty, fifty, or sixty days,—or pro¬ 
vides that where the session is prolonged beyond a certain 
number of days, the pay of members shall cease. The 
wisdom of limiting the sessions to such brief periods, how¬ 
ever, is doubtful, and several states that once imposed such 
restrictions have since removed them. On the whole, it 
seems better to trust the legislature in such matters and 
thus insure more consideration of the multitudinous meas¬ 
ures that come before it. 

Legislative Compensation.—In all the states, members 
of the legislature receive pay for their services. This is 
either in the form of a definite amount per year or session, 
or so much per day. The largest legislative salaries are in 
New York ($1,500 per year); Illinois, Minnesota, and Ohio 
($1,000 per year); and Pennsylvania ($1,500 per session). 
In South Carolina, New Hampshire, and Nebraska, on the 
other hand, the salary is only $200 per year, and in Connect¬ 
icut and Maine it is but $300 per year. In thirty-two 
states the per diem method of compensation prevails, the 
amount ranging from three dollars per day, which is the 
salary paid in Kansas and Oregon, to twelve dollars per 
day, in Minnesota, the most usual sum being four or five 
dollars per day. Mileage ranging in amount from ten 
cents per mile to twenty-five cents is usually allowed, and 
in a number of states there is a small allowance for postage, 
stationery, and newspapers. In some states the pay of the 
legislators is fixed by the constitution and hence the matter 
is beyond the control of the legislature. Indeed, in only a 
few states is the matter of legislative pay left entirely to the 
discretion of the legislature without restriction. 


8 o 


THE STATE LEGISLATURE 


In a number of them the constitution either forbids mem¬ 
bers to accept free passes on the railroads, or makes it the 
duty of the legislature to pass laws prohibiting the ac¬ 
ceptance of such passes. 

Organization of the Legislature.—Each house is usually 
free to organize itself as it may see fit, though where the 
office of lieutenant governor exists, the constitution desig¬ 
nates that official as the presiding officer of the senate. 

The Speaker .—The presiding officer of the lower house is 
styled the speaker, and in all the states he is chosen by the 
house from its own membership. He calls the house to 
order, presides over its deliberations, enforces the rules gov¬ 
erning debate, puts motions and states questions, makes 
rulings on points of order, recognizes members who desire 
to address the house, appoints the committees, signs the 
acts and resolutions passed by the house, and maintains 
order and decorum. He usually belongs to the political 
party which is in the majority in the house, and in making 
up the committees and recognizing members for the pur¬ 
pose of debate he usually favors those of his own party. 

The Clerk .—Each house has a clerk or secretary who 
keeps the journal of the proceedings, has custody of all 
bills and resolutions before the house, keeps the calendar 
of bills, calls the roll, reads bills, and performs other duties 
of a like character. He is often assisted by other clerks 
such as a reading clerk, an engrossing clerk, sometimes an 
enrolling clerk, etc. 

Sergeant-at-arms .—To execute the orders of the house in 
matters relating to the preservation of good order and the 
enforcement of the rules, there is an officer called a sergeant- 
at-arms. He usually has custody of the hall, makes ar¬ 
rests when the house orders an outsider to be taken into 
custody for contempt, compels absent members to attend 


ORGANIZATION OF THE LEGISLATURE 


8i 


when ordered by the house to do so, and sometimes keeps 
the accounts of the pay and mileage of members. 

Other Officers and Employees. —Usually, also, there is a 
chaplain who opens the session with prayer, though he is 
not always a paid employee; a postmaster; and a number of 
miscellaneous employees such as doorkeepers, janitors, copy¬ 
ing clerks, stenographers, pages, etc.^ 

Committees .—For convenience in legislation the mem¬ 
bers of each house are grouped into committees, the more 
important of which are those on agriculture, corporations, 
finance or appropriations, ways and means, judiciary, rail¬ 
roads, labor, education, manufactures, engrossment and 
enrollment, and insurance. In the Western states there 
are usually committees on immigration, mining, dairies, for¬ 
estry, fish and game, drainage, swamp lands, irrigation, 
levees and river improvements, etc. The number and size 
of the committees vary in different states. In some of the 
states there are as many as fifty or sixty committees, and 

^ The California house of representatives, consisting of eighty mem¬ 
bers, had in 1907 the following paid employees: one chaplain, one 
chief clerk, four assistant clerks, one sergeant-at-arms, one book¬ 
keeper, one clerk, fifteen assistant sergeants-at-arms, twenty-three 
committee sergeants-at-arms, one journal clerk, six assistant journal 
clerks, five minute clerks, nine assistant minute clerks, one history 
clerk, one assistant history clerk, one engrossing and enrolling clerk, 
thirt}'- assistant engrossing and enrolling clerks, one postmaster, six 
assistant postmasters, one secretary to the speaker, one bookkeeper 
to the ways and means committee, one file clerk, two assistant file 
clerks, one bill clerk, thirty stenographers, one clerk to the minority, 
sixty-nine committee clerks, forty assistant committee clerks, two 
copy clerks, one mail carrier, one electrician, three telephone attend- 
ats, one cluak room attendant, ten doorkeepers, thirty porters, and 
nineteen watchmen, making a total of 335 employees with salaries 
ranging from $3 to $8 per day. The senate, composed of forty mem¬ 
bers, had 228 paid employees.—California Legislative Manual, 1907. 

Govt. U. S.—6 


82 


THE STATE LEGISLATURE 


occasionally as many as forty members are placed on a 
single committee. In addition to the standing committees 
of each house there are frequently select committees ap¬ 
pointed for special purposes, and there are usually a number 
of joint committees made up of members of both houses. 
In the New England states most of the committee work is 
done by joint committees, there being usually only four or 
five standing committees in each house. 

How Bills are Passed.—Each house is empowered to 
frame its own rules of procedure, but in order to insure 
publicity and careful consideration of bills the state consti¬ 
tutions have placed restrictions upon the legislature in the 
consideration and passage of bills. Thus in all the states 
each house is required to keep a journal of its daily pro¬ 
ceedings; in most states it is provided that no law shall be 
passed except by bill, that no bill shall embrace more than 
one subject, which shall be clearly expressed in the title of 
the bill, that no money shall be appropriated except by 
law, that every bill shall be read at least three times be¬ 
fore being passed, that no existing law shall be amended by 
mere reference to its title but the amended portion must be 
set out in full, and that the yeas and nays shall be recorded 
upon demand of a certain number of members. Some states 
require that every bill shall be referred to a committee, that 
every bill shall be printed and placed on the desk of each 
member, that no bill shall be introduced after the legisla¬ 
ture has been in session a certain number of days, and that 
bills of a local or private character shall be introduced 
only after public notice has been given in the locality af¬ 
fected and to be valid must be passed by a two-thirds ma¬ 
jority of each house; and so on. 

In general these constitutional restrictions represent an 
attempt to eliminate the evils of undue haste, lack of con- 


HOW BILLS ARE PASSED 


83 

sideration, extravagance, the enactment of objectionable 
local and private bills, and to compel the legislature to do 
its work openly, carefully, and in the interest of the public 
good. The strict observance of these rules cannot always 
be enforced, however, and is therefore dependent upon the 
good faith of the legislature itself. 

Order of Procedure .—A common order of the procedure in 
passing bills is the following: i. Introduction and first read¬ 
ing. 2. Reference to a committee. 3. Report of the com¬ 
mittee. 4. Second reading. 5. Third reading. 6. Vote on 
passage. 7. Enrollment. 8. Approval by the Governor. 
This order of procedure, however, is often departed from 
under a suspension of the rules or by unanimous consent. 

Usually any member can introduce a bill on any subject 
and at any time except where the constitution forbids the 
introduction of bills after a certain date, and some legis¬ 
latures have even found a means of evading this restriction. 
In most states a bill can be introduced by filing it with the 
clerk. It is then usually read the first time, though only 
by title, and referred to the appropriate committee for 
consideration and report. The committee may “pigeon¬ 
hole” it and never report, or it may make a report so late in 
the session that consideration of the bill is impossible. If 
the bill seems worthy of being reported, the committee re¬ 
ports it to the house with a recommendation that it be 
passed either with or without amendments, or that it be 
rejected. If reported favorably it is placed on the calendar 
for consideration in its turn. At this stage it is open for 
general discussion and for amendment by the house. If the 
bill meets the approval of the house, it is finally ordered to 
be engrossed and read a third time. It is then put in shape 
by the committee on engrossment, after which it is read a 
third time and finally passed. It then goes to the other 


THE STATE LEGISLATURE 


84 

house, where the procedure is substantially the same. If 
passed by the second house, it is ready for the signature of 
the governor. If amended by the second house, it comes 
back to the first house for concurrence in the amendments. 
If the first house refuses its concurrence, a conference com¬ 
mittee is often appointed by the two houses to consider and 
recommend a compromise. The bill is not ready to send to 
the governor until it has been passed by both houses in 
exactly the same form. 

Lobbying and Bribery.—In all our states a large pro¬ 
portion of the legislation enacted affects directly or in¬ 
directly the interests of particular persons, classes, or locali¬ 
ties. As a result, interested parties bring great pressure 
to bear upon the members to pass certain bills or to re¬ 
ject certain others. 

Methods of the Lobbyist .—Usually when the legislature 
meets, the paid representatives of interested individuals, 
corporations, or local governments appear on the scene to 
urge legislation in their interests or to defeat bills intro¬ 
duced that are unfavorable to them. These persons are 
known as “lobbyists,” and the means they employ to secure 
or prevent legislation are often improper and sometimes 
venal. Sometimes money is used to bribe members to vote 
for or against pending measures, and there are few states 
indeed where charges of this kind have not been made. In 
one state recently, money was contributed in large quanti¬ 
ties by persons interested in preventing certain legislation, 
and the sum thus contributed was known as the “jack 
pot” fund, out of which members were handsomely paid 
for their votes. In a special message to the legislature of 
New York state. Governor Hughes declared that certain 
disclosures had “caused honest citizens to tingle with shame 
and indignation and made irresistible the demand that 


LOBBYING AND BRIBERY 


85 

every proper means should be employed to purge and 
purify the legislature.” The situation described by the 
governor as existing in New York, unfortunately exists in 
other states as well. 

“Strike” Bills .—Some of the great corporations main¬ 
tain regularly paid lobbyists at the state capitals when the 
legislature is in session, not so much for the purpose of 
securing legislation in their interests as to prevent the en¬ 
actment of laws to which they are opposed. Sometimes 
they are practically forced to have lobbyists on the ground 
to prevent the enactment of what are called ‘‘strike” bills, 
that is, bills introduced by unscrupulous members for the 
purpose of extorting money from the corporations to pay 
for defeating the bills. 

Anti-lobbying Legislation .—The evils growing out of the 
practice of the special interests in maintaining paid lobby¬ 
ists near the legislature have led to attempts in a number 
of states to restrict such abuses by legislation. This legis¬ 
lation, in general, makes it unlawful to attempt to influ¬ 
ence improperly any legislator. In several states lobbyists 
are required to make known the purpose of their business 
and to register their names with the secretary of state, and 
after the adjournment of the legislature to file a sworn 
statement of their expenses. 

Direct Legislation: the Initiative and the Referendum.— 

The legislature is not the only agency for enacting law and 
determining the public policies of the state. Laws on cer¬ 
tain subjects may be made by the people themselves acting 
directly in their primary capacity as well as through the 
agency of representatives. This is done through what are 
called the initiative and the referendum. The initiative 
is a device by which the people themselves may propose 
laws and have them submitted to the voters for their 


86 


THE STATE LEGISLATURE 


approval or rejection. Through the referendum the people 
are given the power to approve or reject by popular vote 
certain laws enacted by the legislature. 

Varieties of Referendum .—The referendum may be ob¬ 
ligatory or optional in character, that is, the approval of the 
electorate may be required by the constitution before cer¬ 
tain laws shall go into effect, or the legislature in its dis¬ 
cretion may refer a law to the people for their opinion. 
Thus the constitutions of many states declare that no law 
for increasing the debt of the state beyond a certain amount 
shall be valid until it has been submitted to the voters and 
approved by them. Again, the referendum may be manda¬ 
tory or advisory in character. Under the mandatory form, 
the legislature is required to carry out the will of the elec¬ 
torate as pronounced on any subject referred to the voters, 
while the advisory referendum is nothing more than an 
expression of opinion which may or may not be followed 
by legislative action. 

Again, the referendum may be state-wide in its scope, as 
where a general law or question of public policy is sub¬ 
mitted to the voters of the whole state, or it may be of a 
local character, as where a law affecting a particular com¬ 
munity is referred to the voters thereof. 

The referendum as a device for adopting constitutions 
and constitutional amendments is as old as the republic 
itself, and is now the general practice (pp. 65, 70). In all 
the states except Delaware proposed amendments must 
be submitted to the voters at a general or special election, 
and must be adopted by them before going into effect. The 
use of the referendum for ordinary lawmaking is also an 
old practice, though it is much more generally resorted to 
now than formerly. Thus very early in our history it was 
employed for such purposes as the incorporation of towns, 


DIRECT LEGISLATION 


87 

borrowing money, the location of county sites, division of 
counties, subscription to stock in railroads and other enter¬ 
prises by states, counties, or towns, and the levying of 
special taxes for the support of schools. One of the im¬ 
portant uses to which it was put was the determination of 
the question whether intoxicating liquor should be sold in 
a particular locality. In time what were called local option 
laws were passed in many states, giving the people of towns, 
cities, or other local divisions of the state the privilege of 
determining by popular vote whether liquor should be sold 
within their limits. Other matters that have frequently 
been made the subject of a referendum are: the granting 
of the suffrage to negroes, and sometimes the enfranchise¬ 
ment of women; the location of state capitals; the sale of 
school lands; the incorporation of state banks of issue; the 
granting of aid to railroads; the adoption of the township 
form of local government; the construction of canals; the 
erection of public libraries; and many other matters too 
numerous to mention. There is no state in which the 
referendum is not provided by the constitution for certain 
kinds of legislation, and there is hardly a general election 
held nowadays in which the voters are not called upon to 
pass judgment upon some proposed act of the legislature 
or some question of public policy. 

In Illinois there has been enacted what is known as the 
‘‘public opinion law,” which provides that upon petition 
by 10 per cent of the registered voters of the state the 
legislature is required to submit to the voters any question 
of public policy for their opinion. The popular vote, how¬ 
ever, is nothing more than an expression of opinion by the 
voters and is not binding upon the legislature. 

The Oregon System.—The idea of the initiative and the 
referendum has been carried out most fully in Oregon, 


88 


THE STATE LEGISLATURE 


whose constitution provides that 8 per cent of the voters 
may by petition propose an amendment to the constitu¬ 
tion, and when so proposed it must be submitted to the 
voters and if approved by a majority of them the amend¬ 
ment becomes a part of the constitution. In this way sev¬ 
eral important amendments were recently proposed and 
adopted by the people without the legislature’s having any 
share in the procedure whatever. In the same way the 
constitution of Oregon provides for the initiation and adop¬ 
tion of ordinary laws by the people. The constitution of 
this state further provides that upon the petition of 5 per 
cent of the voters any act of the legislature, with certain 
exceptions, before going into effect, must be submitted to 
the people for their approval, and if not approved by a 
majority of those voting, it shall not go into effect. In this 
way several objectionable laws framed by the legislature 
have been defeated by the voters. For the enlightenment 
of the people on the questions submitted provision is made 
in Oregon for furnishing the voters with ‘‘publicity pam¬ 
phlets” containing an explanation of the questions upon 
which they are called to vote, together with arguments for 
and against each proposition. 

Initiative and Referendum in other States .—Eight or more 
other states (South Dakota, Colorado, Nevada, Missouri, 
Montana, Maine, Arkansas, and Oklahoma), have also es¬ 
tablished both the initiative and the referendum in some 
form or other. Usually the number who are empowered to 
initiate a proposed law is 8 per cent of the registered vote. 
In Texas the referendum is applied to the formulation by 
political parties of their party policies. Thus under the 
primary law of the state, 10 per cent of the voters may 
propose policies which must be submitted to the party 
for their opinion. 


DIRECT LEGISLATION 


89 

Merits of the Referendum .—One of the chief merits of the 
referendum is that it serves as a check on the vices, follies, 
and errors of judgment of the legislature. Another merit 
claimed for the referendum is its educative effect upon the 
electorate. Where the voters are frequently called upon 
to pass judgment upon the acts of the legislature or upon 
questions of public policy, they must, if they discharge their 
duty properly, study the measures submitted to them and 
thus become trained in public affairs. The enjoyment of 
such a privilege also tends to stimulate their interest in 
political affairs and increase their feeling of responsibility 
for the good government of the state. 

The advantage of the initiative is that it puts in the hands 
of the people the power to bring forward needed measures 
of legislation and secure a vote on them whenever the legis¬ 
lature refuses to act in obedience to the popular mind. 

References.— Beard, American Government and Politics, ch. xxv. 
Bryce, The American Commonwealth (abridged edition), ch. xxxix. 
Dealey, Our State Constitutions, ch. vii. Hart, Actual Govern¬ 
ment, ch. vii. Reinsch, American Legislatures and Legislative 
Methods, chs. iv-x. Wilson, The State, secs. 1128-1142. 

Documentary and Illustrative Material.—i. The legislative man¬ 
ual or blue book of the state. 2. A map showing the division of 
the state into legislative districts. 3. Rules of procedure of the two 
houses of the legislature. 4. Specimen copies of bills and resolutions. 
5. Messages of the governor to the legislature. 6. The last volume 
of the session laws of the state. 

Research Questions 

1. How many members are there in the senate of your state legis¬ 
lature? How many in the house of representatives? What is the 
term of the members of each house? What are the qualifications for 
membership? What is the salary? 

2. What is the principle of apportionment of the members of each 
house? Are there any inequalities of representation among the 


90 


THE STATE LEGISLATURE 


districts or counties from which the members are chosen? What 
county has the largest number of representatives? What county the 
smallest number? Have any charges been made that the state is 
“gerrymandered” in the interest of the dominant party? 

3. How many committees are there in each house? Of what com¬ 
mittees are your representatives and your senator members? What 
is the average number of members on each committee? Name some 
of the most important committees. What are the principal officers 
and employees of each house? 

4. How often does the legislature of your state meet in regular 
session? Are there any constitutional restrictions on the length of 
the sessions? Have any extraordinary sessions been held in recent 
years? If so, for what purpose? Are there any restrictions on the 
power of the legislature when in extraordinary session? 

5. How many acts were passed at the last regular session? How 
many joint resolutions were adopted? What is the difference between 
an act and a joint resolution? 

6. What are the provisions in the constitution of.your state in re¬ 
gard to the procedure of the legislature in passing bills? Find out 
from the rules of each house how a bill is introduced, considered, 
and passed. How are special and local acts passed? 

7. Is there a law in your state to regulate lobbying? What is the 
penalty for accepting a bribe? 

8. Is there a legislative reference bureau or other agency in your 
state for collecting information for the benefit of members or for 
assisting them in the preparation of bills? 

9. Are there any provisions in the constitution of your state in re¬ 
gard to the initiative or referendum? Do you know of any instance 
in recent years in which the people of the state were called upon to 
vote on a proposed legislative act or a question of public policy? Is 
there a local option liquor law in your state? If so, have the people 
of your county or city taken advantage of it? 

10. Do you’-think members of the legislature when instructed by 
their constituents to vote for or against a certain measure, should 
obey the instructions, or vote according to their own judgment of 
what is best without regard to the expressed will of the people? 

11. Is there any organization in your state for studying the records 
of members and for securing the election of honest and efficient 
legislators? 


CHAPTER V 


THE STATE EXECUTIVE 

The Governor; Election and Qualifications. —Each state 
has a chief executive styled a governor, who is charged with 
the execution of the laws. In all he is elected by the people. 
In nearly all, a plurality of the popular vote is sufficient to 
elect, but in a few states a majority is required and if no 
candidate receives a majority of the popular vote, either 
the legislature makes the choice, or a second popular elec¬ 
tion is held. 

To be eligible as governor, a man must have attained a 
certain age, usually thirty years, and generally he must be 
a citizen of the United States; in many states he must 
have been a citizen for a period ranging from five to twenty 
years. He is also usually required to have been a resident 
of the state for a period ranging from one to ten years. 

Term. —The term of the governor in about half the 
states is two years; in most of the others it is four years; 
in New Jersey it is three years; and in Massachusetts and 
Rhode Island it is one year. A one-year term seems to 
have little to recommend it, for experience is as necessary 
for the successful administration of public affairs as for 
the conduct of private business, and familiarity with the 
duties of an office of such importance cannot be acquired 
in so short a time. However, where the one-year term pre¬ 
vails it is customary to reelect the governor to a second 

91 


92 


THE STATE EXECUTIVE 


term. In a number of states, the governor is ineligible to 
two successive terms, the idea being that if reeligible he 
would make use of his official power to secure his reelection. 
A few state constitutions wisely provide that he may hold 
office until his successor has qualified, and thus the danger 
of a vacancy is obviated. 

Salary.—The salary of the governor is everywhere com¬ 
paratively small, though in recent years the tendency has 
been to increase it. In about half the states now the salary 
is $5,000 per year or more. In California, New Jersey, New 
York, Ohio, and Pennsylvania, it is $10,000 per year, and 
in Illinois it is $12,000. The smallest salary now paid is 
$2,500 per year, which is the amount allowed in Nebraska, 
Vermont, and Wyoming, Frequently thcL.state provides 
the governor with a residence styled the “executive man¬ 
sion.” A contingent fund out of which to meet the expense 
of emergencies in the execution of laws is usually placed at 
his disposal, but this fund cannot be used for private pur¬ 
poses. Some governors, however, have not been very care¬ 
ful to distinguish between private and official purposes, and 
not infrequently the use made of this fund has been the 
subject of legislative investigation and of popular criticism. 

Organization of the Executive Department.—The or¬ 
ganization of the executive department of the state gov¬ 
ernment is different in one important respect from that of 
the executive department of the United States. In the 
national government the responsibility for the administra¬ 
tion of executive affairs is concentrated in the hands of the 
President, and the heads of the various departments are 
all his appointees; they are responsible directly to him for 
the discharge of their duties, are, within the limits of the 
law, subject to his direction, and may be removed by him 
for any reason which to him may seem expedient. The 


ORGANIZATION OF EXECUTIVE DEPARTMENT 


93 


executive power of the state, on the contrary, instead of 
being concentrated in the hands of the governor, is really 
divided between him and a number of other state officers, 
who are generally elected by the people and over whom he 
has little or no control. They are, in short, his colleagues 
rather than his subordinates. This method of organizing 
the executive power has justly been criticized on the ground 
that it introduces a division of responsibility and lack of co¬ 
ordination in the state administration. Thus, although the 
governor is charged with the execution of the laws, he usu¬ 
ally has no power to direct the attorney-general to institute 
proceedings against a person or corporation for violating 
the law, as the President of the United States might do in a 
similar case. Again, he may have reason to believe that the 
state treasurer is a defaulter, but in most of the states he 
has no power to examine into the affairs of the treasurer’s 
office, or to remove him from office. And so with the other 
principal officers that collectively make up the executive 
department. The responsibility of these officials is usually 
to the people alone, and responsibility in such cases cannot 
always be enforced, for they are elected for specific terms 
and cannot be removed before the expiration of their terms, 
except by the cumbersome method of impeachment. 

The Lieutenant Governor .—In about two thirds of the 
states there are lieutenant governors chosen for the same 
time and in the same manner as the governor. About the 
only duty of this official is to preside over the deliberations 
of the senate. In case of a vacancy in the office of governor 
on account of death, resignation, or removal, or in case of 
his absence from the state, the lieutenant governor per¬ 
forms the duties of the office for the time being. 

Executive Councils .—Three of the New England states 
(Massachusetts, Maine, and New Hampshire) have execu- 


THE STATE EXECUTIVE 


94 

tive councils—survivals of colonial days—which share the 
executive power with the governor to a considerable extent. 
Their consent is necessary to the validity of many of his 
acts, such as the making of appointments, the granting of 
pardons, and the like. A modified form of the executive 
council is found in a few other states. 

Other Executive Officers.—Besides the governor, who 
is the chief executive, there are in every state a number of 
state officers each in charge of a particular branch of the 
administrative service. 

Secretary of State—Tho: first of these in rank is the secre¬ 
tary of state, who is the custodian of the state archives and 
of the great seal of the state; has charge of the publication 
and preservation of the laws; countersigns the proclama¬ 
tions and commissions issued by the governor and keeps a 
record of them; issues certificates of incorporation to com¬ 
panies incorporated under the laws of the state; and dis¬ 
charges other miscellaneous duties which vary in the differ¬ 
ent states. He is elected by the people in all the states 
except a very few where he is either appointed by the gov¬ 
ernor or chosen by the legislature. 

The Treasurer of the state, as the name indicates, is the 
keeper of the public moneys, such as taxes, trust funds, 
and the like, and upon warrants issued by the auditor 
or other proper authority, he pays out money appropriated 
by the legislature. Everywhere he is elected by the people, 
usually for a short term, and is required to give a heavy 
bond so as to insure the state against loss in case of his 
carelessness or dishonesty. He is generally paid a salary, 
which is increased in some cases by the practice of treas¬ 
urers depositing the state’s money in banks from which 
they receive interest. The treasurer of a certain Western 
state received thousands of dollars a year in this way, until 


OTHER EXECUTIVE OFFICERS 


95 

the legislature passed a law requiring him to turn into the 
state treasury all moneys received in the form of interest on 
state deposits. 

Auditor .—Another financial officer found in all the states 
is the auditor or comptroller, whose duties, in general, are 
to audit the accounts of the state and issue warrants upon 
the treasurer for the payment of moneys which have been 
appropriated by the legislature. A warrant issued by the 
auditor is the treasurer’s authority for paying money out of 
the treasury, and without such an order he has no lawful 
right to make a disbursement. Other duties of a miscel¬ 
laneous character are imposed upon auditors in the differ¬ 
ent states. 

Superintendent of Education .—Another important official 
is the superintendent or commissioner of public education, 
who has charge of the larger educational interests of the 
state. He supervises the administration of the school laws, 
distributes the school fund among the local districts, makes 
rules and regulations in regard to the holding of teachers’ 
institutes, makes reports to the legislature concerning the 
educational conditions and needs of the state, and is fre¬ 
quently a member of the state board of education and of 
the boards of trustees of the state educational institutions. 

Other Officers .—Besides the officials mentioned above, 
there are a multitude of other officers and employees in the 
larger states, such as the commissioner of agriculture, the 
commissioner of immigration, the commissioner of labor, 
state engineer, health commissioner, superintendent of pub¬ 
lic works, state printer, factory inspectors, pure food and 
dairy commissioners, state architect, land commissioner, 
mine inspectors, superintendents of insurance, and many 
others too numerous to mention. Of course, not every 
state has all these, but some of the more populous ones 


96 THE STATE EXECUTIVE 

such as New York and Massachusetts have most of them 
and others in addition. 

The Governor’s Powers.—The powers and duties of gov¬ 
ernor may be roughly grouped into four classes: (i) his 
share in the making of the laws; (2) his power to execute the 
laws and administer the affairs of government; (3) his mili¬ 
tary power; and (4) his power to grant pardons for viola¬ 
tions of the laws. 

Legislative Powers .—Power to Call Extra Sessions — 
Everywhere he is empowered to call the legislature together 
in extraordinary session. He uses this power in case of 
emergencies, and also to secure the enactment of needed leg¬ 
islation which has been overlooked or neglected by the legis¬ 
lature at the regular session. In New York recently, when 
the legislature adjourned without enacting a promised law 
against race track gambling, the legislature was summoned 
in extraordinary session and executive pressure and public 
opinion were brought to bear upon it to compel the enact¬ 
ment of the law. Sometimes a great catastrophe occurs 
when the legislature is not in session; for example, the Cali¬ 
fornia earthquake, the Cherry mine disaster in Illinois, and 
the Galveston storm, each of which required the immediate 
attention of the legislature. In order to prevent the legis¬ 
lature when in extraordinary session from taking action for 
which there is really no need, the constitutions of most 
states forbid it to consider any subjects not submitted to it 
by the governor; and in some states the length of an extra 
session is limited to thirty or sixty days. 

The Executive Message .—The governor is generally re¬ 
quired to give the legislature information concerning the 
affairs of the state and to recommend the enactment of such 
laws as in his judgment the public good requires, the idea 
being that he is more familiar than any one else with the 


THE GOVERNOR’S POWERS 


97 


defects of the existing laws and with the legislative needs 
of the state. This information, with the accompanying 
recommendations, is communicated to the legislature in a 
message at the beginning of the session,^ and is often fol¬ 
lowed by special messages from time to time recommend¬ 
ing consideration of particular matters that may arise in 
the course of the session. The weight which the recom¬ 
mendations of the governor have with the legislature de¬ 
pends, of course, upon his influence with the members and 
his standing with the people. If he belongs to the same* 
political party which is in control of the legislature, and the 
party is not divided, or if he is especially aggressive and is 
backed by a strong public opinion throughout the state, his 
recommendations carry more weight than they would under 
opposite conditions. 

The Veto Power. —Finally, in every state except North 
Carolina the governor has the power to veto bills passed by 
the legislature. Owing to fear of executive tyranny, the 
veto power was generally withheld from governors for a 
considerable time after the Revolution; in fact, in only two 
states (Massachusetts and New Hampshire) was this power 
granted to the governor before the close of the eighteenth 
century. The worst fears of executive tyranny, however, 
proved to be without foundation, and the advantage of 
vesting in the hands of the governor the power to correct 
the mistakes of the legislature by refusing to approve ob¬ 
jectionable laws soon came to be generally appreciated. 
Under the interpretation of the veto power the governor 
may refuse to sign a bill either because, in his judgment, it 
is inconsistent with the constitution which he has sworn to 

iThe constitution of Illinois requires the governor to transmit 
a message to the legislature also at the end of his term, summing up 
the condition of affairs of the state at the time. 

Govt. U. S.—7 


THE STATE EXECUTIVE 


98 

support, or because he thinks it unwise or inexpedient, in 
either case his judgment being conclusive. But manifestly, 
an absolute veto is too great a power to intrust to a single 
person, however wise he may be. The constitutions of all 
the states, accordingly, empower the legislature to override 
the veto of the governor by repassing the vetoed bill, in 
which case it goes into effect notwithstanding the executive 
objection. To do this, however, a majority of two thirds or 
three fifths of the members of the legislature is usually 
necessary, the idea being that the judgment of so large a 
proportion of the legislature ought to be allowed to prevail 
over that of the governor in case of a difference of opinion. 
In the few remaining states a bare majority of the members 
of the legislature may override the executive veto, though 
not infrequently the statement of objections by the gover¬ 
nor in his veto message serves to convince some of those 
who voted for the vetoed bill that it is unwise, and thus the 
veto will be sustained. When a bill is presented to the 
governor for his signature he is allowed a period ranging 
from three to ten days in which to consider it before taking 
action. A subject of criticism in some states is the practice 
of the legislature of delaying final action on many bills 
until the last days of the session and then dumping them all 
on the governor so that the time allowed him for consider¬ 
ing their merits is necessarily too short. 

A wise provision found in the constitutions of about 
thirty states is one which allows the governor to veto par¬ 
ticular items in appropriation bills. Thus if the legislature 
passes a bill carrying appropriations for a variety of objects, 
some worthy and others objectionable, the governor is not 
under the necessity of approving or rejecting the bill as a 
whole, but may approve the desirable portions and veto the 
others. In this way wasteful and objectionable appropria- 


THE GOVERNOR’S POWERS 


99 

tions of the public funds may be prevented without at the 
same time defeating those which are necessary and com¬ 
mendable. 

Executive and Administrative Powers of the Governor.— 
The governor is generally charged by the constitution with 
taking care that the laws are faithfully executed, though, 
as already stated, the executive power is really divided be¬ 
tween him and a number of colleagues. 

Power over State Officers .—He generally has a certain 
power of oversight over the other principal state officers, 
but little power of control over them. There is a tendency, 
however, to enlarge his power in this respect. Several 
constitutions, for example, empower him to require reports 
from the principal state officers, and in some states he is 
given the right to examine into the condition of the treas¬ 
urer’s and comptroller’s offices, and if he finds that the in¬ 
cumbent has misapplied the public money intrusted to his 
care he may remove or suspend him from office. In a very 
few states, also, the governor may remove sheriffs or mayors 
for negligence or abuse of their power in the enforcement of 
the state laws. The governor of Illinois, for example, re¬ 
moved a sheriff for permitting a mob to lynch a prisoner in 
his custody, and the governor of Ohio removed a mayor for 
a similar cause. 

Power of Appointment .—The governor’s principal execu¬ 
tive power consists of the right to appoint certain officers 
and boards, and sometimes to remove them, subject to cer¬ 
tain restrictions. In the early days of our history, many 
of the state officers were chosen by the legislature, but 
with the growth of the democratic spirit the selection of 
these officials was taken from the legislature and they were 
made elective by the people. In a very few states the legis¬ 
lature still retains a considerable power of appointment. In 


lOO 


THE STATE EXECUTIVE 


most states, however, the governor appoints all officers not 
elected by the people. In a few states he appoints the 
judges; in half a dozen or more he appoints several of the 
principal state officers, such as the secretary of state and the 
attorney-general, and in most of them he appoints some of 
the important administrative officers and the members of 
various boards and commissions. In New York, for ex¬ 
ample, he appoints the superintendent of insurance and 
banking, the members of the two public service commis¬ 
sions, the superintendent of public works, the commis¬ 
sioner of agriculture, the commissioner of health, and other 
important officials. In some states he appoints the railroad 
commissioners, the trustees of public institutions, members 
of the state board of health, the members of various exam¬ 
ining boards, pure food commissioners, factory inspectors, 
game commissioners, mining inspectors, and so on. As com¬ 
pared with the President of the United States, his power of 
appointment, however, is very small. Moreover, his power 
to appoint is usually limited by the condition that his 
nominations must be approved by the senate or the execu¬ 
tive council where there is such a body. 

Power of Removal .—The governor can usually remove 
the officials whom he appoints, but rarely any others. But 
the power of removal must exist somewhere, because it 
would be intolerable to have to retain in the public service 
men who are dishonest, incapable, or otherwise unfit. The 
other methods of removal provided are impeachment, re¬ 
moval by resolution of the legislature, and occasionally re¬ 
moval by the courts. Removal by impeachment takes 
place by the preferment of a charge by the lower house of 
the legislature and trial by the upper house. This method, 
however, is cumbersome and is rarely resorted to—never in 
the case of minor officials. Removal by resolution of the 


THE GOVERNOR’S POWERS 


lOI 


legislature is sometimes employed for getting rid of unfit or 
corrupt judges. In one state, Oregon, the method of recall 
has been instituted, by which, on petition of 25 per cent of 
the voters, the officer must submit his case to the voters, 
and if a majority of them pronounce in favor of his recall, 
he must retire. 

The Military Powers of the Governor.—In every state 
the governor is commander in chief of the military forces 
of the state and also of the naval forces where there are 
any—a power which means little in times of peace. When¬ 
ever there are riots or serious disturbances, however, this 
power becomes important. When the disturbance is too 
great to be suppressed by the local authorities, the gov¬ 
ernor may order but a portion of the militia and may, if 
he elects, take charge of it himself. There are few states 
where the governor has not at some time or another been 
compelled to make use of this power. Mobs sometimes 
break into jails and take out prisoners and lynch them; 
and sometimes strike riots occur in mining or manufac¬ 
turing communities, in which cases the governor may be 
called upon to send troops to the scene of the disturb¬ 
ance and keep them there until quiet and order have been 
restored. 

Power to Suspend the Writ of Habeas Corpus .—A usual 
part of the governor’s military power is the right to sus¬ 
pend the writ of habeas corpus in communities where great 
disorders prevail, that is, to suspend the power of the 
courts to release prisoners charged with violations of the 
law, thus leaving unhampered the power of the military 
authorities to restrain persons they may imprison. This 
power, however, is one which might be grossly abused; 
therefore many state constitutions forbid the suspension 
of the writ except under extraordinary conditions, and 


102 


THE STATE EXECUTIVE 


a few, indeed, permit it to be suspended only by the 
legislature. 

The Military Forces of the State consist usually of a 
number of regiments of citizen soldiers, who are organized, 
uniformed, and officered after the manner of the regular 
army of the United States, who attend an annual encamp¬ 
ment for purposes of drill and practice, and who must 
always be ready to respond to the call of the governor. At 
the head of the state militia is an officer called the adjutant 
general, through whom the military orders of the govern¬ 
ment are issued and carried out. The governor also has a 
military staff which accompanies him on occasions of cere¬ 
mony such as the inauguration of the President of the United 
States, grand army reviews, and the like. 

The Pardoning Power.—In every state the governor is 
vested with the power of pardoning offenders against the 
laws of the state, but in most states the exercise of the 
power is subject to restrictions. The purpose of vesting 
this power in the governor is to make it possible to correct 
the errors of courts and juries, as where subsequent to the 
conviction evidence is brought to light showing that the 
person convicted is innocent, and has been wrongfully con¬ 
victed, or where it becomes evident before the full penalty 
has been paid that the offender has been sufficiently pun¬ 
ished and should be released. 

In many states boards of pardon have been provided for 
sharing with the governor the responsibility for the exercise 
of this important prerogative.^ These boards are of two 
kinds: first, those whose powers are limited to the hear¬ 
ing of applications for pardons and the making of recom- 

^ In several states certain of the state officers, one of whom is the 
attorney-general, serve as the pardon board; in others, it is the senate; 
and in Massachusetts and Maine it is the executive council. 


THE GOVERNOR’S POWERS 


103 


mendations to the governor, who is not bound by their 
advice; and second, those whose approval is necessary for 
the validity of any pardon granted by him. Convictions for 
treason and in impeachment cases are frequently excepted 
from the list of cases in which the governor may grant 
pardons, though in the case of treason he is sometimes 
given the power to suspend the execution of the sentence 
to await the action of the legislature. In a number of 
states notice of an application for a pardon must be pub¬ 
lished in the community where the applicant was convicted, 
in order that the people of the community who have been 
injured by his crime may have an opportunity to protest 
against the granting of a pardon to him. Sometimes also 
the approval of the presiding judge of the court in which the 
criminal was convicted is necessary before a pardon may be 
granted. It is usual to require the governor to make a 
report to the legislature at each session of all pardons 
granted, and at the same time give the reason in each case 
why a pardon was issued. 

Generally with the right of pardon is included the power 
to grant reprieves, that is, stays of execution; commuta¬ 
tions, that is, the substitution of a lesser punishment in the 
place of the one imposed; and remission of fines and for¬ 
feitures. The right also usuajly includes the power of 
amnesty or the power of granting by proclamation par¬ 
dons to large numbers of persons, as in the case of uprisings 
or insurrections against the laws and authority of the state. 
A pardon may be absolute or conditional; in the first case, 
it is granted without restriction; in the second case, it is 
valid only on certain conditions, as where the offender is 
required to lead an upright life or where he is required to 
leave the state. Generally the governor of the state, un¬ 
like the President of the United States, has no power to 


104 


THE STATE EXECUTIVE 


grant a pardon to an individual offender before he has been 
convicted. 

State Boards and Commissions.—One of the remark¬ 
able political tendencies of recent years has been the multi¬ 
plication of boards and commissions to aid in the govern¬ 
ment of the states. Every state now has a number of such 
boards, and in some of the populous commonwealths such as 
New York and Massachusetts there are upwards of a hun¬ 
dred of them. Hardly a legislative session passes that does 
not create one or two commissions for some purpose or 
other. These boards or commissions fall roughly into five 
classes, as follows: 

First, many of these boards are of an industrial character, 
such as boards of agriculture, food and dairy commissions, 
live stock, fish, and mining commissions, and the like. In 
general their purpose is to promote the agricultural, mining, 
and industrial interests, generally, of the state, through the 
collection and dissemination of information concerning the 
best method of conducting those industries. 

A second class of boards are of a more distinctly scientific 
and research character, such as boards of health, bureaus of 
labor and statistics, geological commissions, forestry boards, 
and the like. Although some of these, like the board of 
health, are charged with the execution of certain laws, the 
general purpose of all of them is scientific research and the 
collection of data. 

A third class of boards are those charged primarily with 
the supervision of certain businesses or industries affecting 
the public interest, and with the enforcement of the laws 
relating to such businesses. Such are the railroad commis¬ 
sions, commissions of insurance, public utility commissions, 
commissions of inland fisheries, and the like. In some in¬ 
stances these commissions not only have power to pre- 


STATE BOARDS AND COMMISSIONS 105 

scribe rules according to which businesses affected with a 
public interest may be carried on, but also to fix the rates 
which they may charge. 

A fourth group of commissions or boards are those charged 
with examining applicants who desire to engage in certain 
professions or trades for which special qualifications are 
prescribed by law. Such are boards of dental examiners, 
boards of medical examiners, boards of examiners of archi¬ 
tects, of plumbers, of pharmacists, barbers, and the like. 
The purpose of requiring such examinations is to secure a 
standard of efficiency, and to protect society against quacks, 
charlatans, and incompetent practitioners generally. 

A fifth class includes those which have supervision over 
the public institutions of the state, educational, penal, 
reformatory, charitable, etc. 

Members of all these classes of boards are usually ap¬ 
pointed by the governor, though occasionally a board is 
made up of members chosen by popular election. 

The State Civil Service System.—In a great and popu¬ 
lous state, the number of persons necessary to carry on 
the government in its various branches is very large. In 
New York, for example, about 60,000 persons are in the 
employ of the state government. In order to provide a 
method by which subordinate employees can be selected 
with regard to their character and fitness rather than with 
reference to their political opinions or party services, a 
number of states have enacted civil service laws establish¬ 
ing the merit system of appointment. The states that have 
gone farthest in this direction are New York, Massachu¬ 
setts, and Wisconsin. Other states, notably Illinois, In¬ 
diana, and Colorado, have provided for the selection of the 
employees of certain of their public institutions by the 
merit system. 


io6 


THE STATE EXECUTIVE 


The recent civil service laws provide, in general, for the 
classification of all positions other than those filled by 
popular election, by executive appointment, or by legis¬ 
lative choice, and for appointment to these positions only 
after an examination of the candidates. Generally, those 
who pass the examination successfully are placed on an 
eligible list in the order of the grades which they receive, 
and when an office is to be filled, the appointing officer is 
required to make his choice from the three candidates 
highest on the list. For the filling of certain positions re¬ 
quiring technical skill, special non-competitive examinations 
are given and less consideration is given to academic quali¬ 
fications. Certain positions are not placed under the civil 
service rules, and the appointing authority is allowed to 
make his choice without the necessity of examinations. 
Such are the positions of private secretary, chief clerk, and 
other employees who occupy a confidential relation to the 
heads of departments. 

The chief advantage of the examination system of filling 
civil service positions is that it eliminates the evils of the 
spoils system and places the public service on a merit basis. 
It must be admitted, however, that the system is not per¬ 
fect, because fitness for the performance of administrative 
duties cannot always be determined by examinations. 
Nevertheless, it is much better than the old method known 
as the “spoils system,” under which appointments wer^ 
made for party services; and it will in time, no doubt, be 
adopted in all the states. 


References.— Beard, American Government and Politics, ch. xxiv. 
Bradford, Lessons of Popular Government, vol. ii, ch. 32. Bryce, 
The American Commonwealth (abridged edition), ch. xl. Dealey, 
Our State Constitutions, ch. v. Finley and Sanderson, The Ameri- 


THE STATE CIVIL SERVICE SYSTEM 


107 

can Executive and Executive Methods, chs. iii, vi, vii, viii, ix. Hart, 
Actual Government, ch. viii. 

Documentary and Illustrative Material—i. The legislative man¬ 
ual of the state. 2. Copies of the governor’s inaugural address, 
messages to the legislature, veto messages, public proclamations, 
etc. 3. Copy of the revised statutes (chapter on the executive de¬ 
partment). 4. Reports of the state officers to the governor. 

Research Questions 

1. What is the term of the governor of your state? the salary? 
Do you think the salary is adequate? What are the governor’s 
qualifications? Compare the provisions of the present constitution 
with those of previous constitutions in regard to these matters. Is 
the governor eligible to succeed himself? Is it customary to reelect 
the governor in your state? What, in your opinion, are the relative 
merits of a one-year term and a four-year term for the governor? 

2. Suppose a question should arise as to who was really elected 
governor, what authority would determine the matter? Are there 
any circumstances under which the legislature may elect the gov¬ 
ernor? Is the governor of your state required to vacate his office 
immediately at the expiration of his term, or is he allowed to hold 
over until his successor has qualified? 

3. Make a list of the names of the men who have held the office of 
governor of your state, indicating the years they served and the polit¬ 
ical parties to which they belonged. (This information can be ob¬ 
tained from the blue book or legislative manual or from some history 
of the state.) 

4. Does the constitution of your state provide for a lieutenant 
governor? In general, what has been the type of men elected to 
this office? 

5. Make a list (from the blue book) of the offices in your state that 
are filled by appointment by the governor. Do you think the ap¬ 
pointive power of the governor ought to be enlarged? Mention some 
offices now filled by popular election which, in your opinion, should 
be filled by executive appointment. 

6 . May the governor of your state remove officers appointed by 
him? If so, under what conditions? May he remove any officers 
elected by the people? If he finds that the treasurer of the state has 


io8 


THE STATE EXECUTIVE 


misappropriated a large amount of state money, can he remove 
him? May the governor of the state remove any local officers? Thus 
if the sheriff should allow a prisoner in his custody to be lynched by a 
mob or the mayor of a city should refuse to execute a state prohibition 
law, may the governor suspend or remove such officers for neglect of 
duty? If not, are there any means of punishing the negligent officer? 

7. What were the principal recommendations in the message of the 
governor to the legislature at its last session? 

8. May the governor of your state veto particular items in appro¬ 
priation bills? May he sign a bill after the adjournment of the legis¬ 
lature? May he veto a bill upon grounds of public policy as well as 
upon grounds of unconstitutionality? How many bills were vetoed 
by the governor at the last session? 

9. Is there a civil service law in your state? If so, to what offices 
and employments does it apply? How are appointments made under 
the law? 

10. For what purposes and under what circumstances may the 
governor use the military forces in your state? Have there been any 
instances recently in which the militia was ordered out? What is 
meant by the governor’s “staff ”? Find out from the blue book how 
many regiments of the national guard there are in your state. 

11. Are there any restrictions on the power of the governor to 
grant pardons? May he also grant reprieves and commutations? 
May he remit fines and forfeitures? May he grant amnesties? Is 
there a pardon board in your state? If so, how is it constituted and 
what are its powers? How many pardons have been granted by the 
present governor? 

12. May the courts control the governor by issuing writs to com¬ 
pel him to do his duty or to restrain him from doing certain things? 
May he be arrested for wrongdoing? May he be compelled to give 
testimony in the courts? If not, why not? Is there any way by which 
an unworthy governor may be put out of office before the expiration 
of his term? Describe the procedure by which this is done. 


CHAPTER VI 


THE STATE JUDICIARY 

Function of the Courts. —The legislature enacts the laws, 
the executive officers enforce them, the courts interpret 
their meaning and apply them to particular cases. The 
courts are also the instrumentalities through which the 
rights guaranteed us by the constitution and the laws are 
enforced. If your neighbor owes you a debt and refuses to 
pay, if you make a contract with some one and he refuses to 
perform the stipulations, if some one injures you in your 
person or property, in these and countless other instances 
you must look to the courts for protection or redress. They 
are the agencies for settling disputes among men, for en¬ 
forcing contracts, for trying and punishing violations of the 
law, and for determining what our rights are when they are 
drawn in dispute. 

Grades of Courts. —(i) Justice of the Peace .—At the bot¬ 
tom of the judicial system stand the courts of the justices 
of the peace, which have jurisdiction of civil cases involving 
small amounts, usually less than $150, and of petty offenses 
against the laws. On a level with these courts are certain 
municipal courts in the cities. The justice of the peace is 
a magistrate of ancient origin, and in reality his court is 
important since it is to this court that large numbers of 
persons resort for the settlement of their disputes. Too little 
attention is given to the choice of the men who fill this im- 

109 


no 


THE STATE JUDICIARY 


portant office, and the result is that the court of the justice 
of the peace has been and is the weakest part of our judicial 
system. Generally there are several justices of the peace 
in every town or township. Usually they are elected by 
the people, though sometimes they are appointed. One of 
the sources of the evils connected with the system is that 
they are paid fees rather than salaries. This system of 
compensation often leads them to solicit business and some¬ 
times to divide their fees with lawyers who bring cases to 
them for trial. They not only try petty civil and criminal 
cases, but they have the power to conduct preliminary ex¬ 
aminations into more serious offenses in order to determine 
whether there is ground for holding the accused for trial. In 
case the justice thinks the evidence warrants the trial of 
the offender, he ‘‘binds” him over to await the action of the 
grand jury. 

(2) County Courts .—Next above the court of the justice of 
the peace is, in some states, the county court, so called 
because its territorial jurisdiction embraces the entire 
county. This court has jurisdiction of civil cases involving 
large amounts and of more serious criminal cases. It also 
has the right to hear appeals from the justices of the peace. 

(3) Circuit Courts .—Still higher in the judicial organiza¬ 
tion, in most states, are the courts whose territorial jurisdic¬ 
tion embraces a larger area of the state—usually a group 
of counties—and which are empowered to try any civil or 
criminal case without reference to the amount in contro¬ 
versy or the character of the offense. They are generally 
styled circuit courts, because the judge usually travels from 
county to county holding court in each county in the dis¬ 
trict or circuit. Sometimes, however, they are called dis¬ 
trict or superior courts, and in a few states “supreme” 
courts. 


GRADES OF COURTS 


III 


(4) The Supreme Court. —Finally, at the top of the judicial 
hierarchy is the supreme court, or court of appeals, as it is 
sometimes called. Unlike the other courts below, its juris¬ 
diction embraces the whole state, and the judges are elected 
or appointed usually from the state at large. Unlike the 
other courts, moreover, instead of being held by a single 
judge, it is held by a bench of judges, the number ranging 
from three to nine in the different states. It has original 
jurisdiction in certain cases, but its most important func¬ 
tion is that of hearing appeals from the decisions of the 
lower courts, and of deciding upon the constitutionality of 
the 'laws. In cases appealed to it from the lower courts, it 
has the final word of authority except where a federal ques¬ 
tion is involved, in which case an appeal may be taken to 
the United States Supreme Court. 

Courts of a Special Character.—The justice’s, circuit, and 
supreme courts are found in all the states, though some¬ 
times designated by different names. In addition to these, 

however, we sometimes find other courts of a more or less 

# 

special character. 

Prohate Courts .—Thus in many states there are separate 
probate courts for the settlement of the estates of deceased 
persons, for dealing with matters relating to wills and in¬ 
heritances, and sometimes with matters affecting orphans 
and minors. They are occasionally called surrogate’s or 
orphans’ courts. In many states, however, there are no 
separate probate courts, the probate business being taken 
care of by the county court. In certain other states pro¬ 
bate courts are separately provided only for the more pop¬ 
ulous counties. 

Juvenile Frequently in the more populous cities 

there are also juvenile courts for the trial of youthful of¬ 
fenders. 


II2 


THE STATE JUDICIARY 


Equity Courts .—In a few states the distinction between 
law and equity is still maintained, and equity jurisdiction is 
intrusted to a distinct class of courts. Equity had its origin 
in the practice of the King of England in early times in 
granting relief to suitors who, owing to the deficiencies of 
the common law, could not obtain relief through the courts 
of law. In time all such petitions came to be addressed to 
an officer who stood very close to the king and who was 
called the chancellor. Out of this office there were ulti¬ 
mately evolved the chancery courts which administered 
justice, not according to the law, but according to a less 
technical body of rules called equity. Thus there came to 
be two bodies of rules according to which justice was ad¬ 
ministered, and two classes of courts through which it was 
done. The jurisdiction of equity courts included such mat¬ 
ters as trusts, accounts, fraud, mistake or accident, and the 
like. Equity could also prevent wrongs, while law could 
only punish them.^ Thus a court of equity could command 
a person to do something for the benefit of an injured person, 
or restrain him from committing an injury, while a court of 
law could only award him damages after the injury had 
been done—a remedy often worthless or inadequate. The 
English system of equity, like the common law, was trans-. 
planted to America, and both are still in force here except 
in so far as they have been modified by legislative acts. 
England, however, abolished the separate system of equity 
courts in 1873, and left the law courts to administer equity 
wherever it was applicable Likewise, in the United States, 
separate equity courts have been done away with in all ex¬ 
cept five states, leaving the same courts to administer both 
law and equity. 

The Judges of Courts.— Qualifications .—Generally no 
^ Baldwin, The American Judiciary, p. 133. 


THE JUDGES OF COURTS 113 

qualifications for the judicial office are prescribed by law, 
except in a few states where it is required that judges shall 
be lawyers or be “learned in the law.’’ As a matter of fact, 
however, judges are nearly always lawyers, except in the 
case of justices of the peace and police magistrates, where 
extensive knowledge of the law is not essential. 

Terms of Office .—The terms of the judges vary widely 
among the different states. In the early days of our history, 
the judges generally held their offices during good behavior 
or until the attainment of a certain age, usually sixty or 
seventy years. With the growth of democracy, however, 
most of the states came to adopt short terms for judicial 
as well as for other public officials. Only in Massachusetts, 
New Hampshire, and Rhode Island do the judges of the 
highest court now serve for life. Elsewhere the tenure 
varies from two years, in Vermont, to twenty-one years, in 
Pennsylvania. In Maryland, the tenure is fifteen years; in 
New York, fourteen; in several, it is twelve, in some nine, 
in many six. The advantage of a long term is that it en¬ 
ables the judges to acquire experience and renders them less 
affected by pohtical influence and popular clamor. 

Methods of Choosing the Judges .—In early times the 
judges were chosen either by the legislature or by the gov¬ 
ernor. Choice by the legislature was objectionable be¬ 
cause it often resulted in selection by political caucuses 
and in a parceling of the judgeships among the differ¬ 
ent counties or sections of the state. Appointment by 
the governor was objectionable to many because it often 
resulted in the choice of political favorites or friends of the 
executive as rewards for political service. Most of the 
states, therefore, abandoned these methods of choice for 
popular election, Mississippi in 1832 being the first state to 
adopt this method. Only in Delaware, New Jersey, Massa- 
Govt. U. S.—8 


THE STATE JUDICIARY 


114 

chusetts, New Hampshire, Maine, Mississippi, and Louisi¬ 
ana are the higher judges now appointed by the governor,— 
subject to the confirmation of the state senate or the legis¬ 
lature,—and only in Rhode Island, Vermont, South Caro- ^ 
lina, and Virginia are they elected by the legislature. In all 
the other states they are elected by the people. 

The arguments in favor of popular election are that it is 
more in harmony with the principles of popular government, 
and, it is claimed by some, tends to secure a higher class of 
judges, thus doing away with the evils of executive appoint¬ 
ment and of legislative choice described above. The ob¬ 
jection to this method, however, is that it compels judicial 
candidates to engage in political contests, and by making 
their tenures dependent upon popular favor subjects them 
to the temptation of shaping their decisions to meet the ap¬ 
proval of the people, who, obviously, are not always quali¬ 
fied to judge of the soundness of judicial decisions involving 
intricate questions of law. Such a method, it is claimed by 
some, tends to secure the election of politicians rather than 
of able judges, because the fittest men for judgeships do not 
always make the most popular candidates. 

Compensation of the Judges .—The pay of the judges, like 
their terms of service, varies widely among the different 
states. The lowest salary paid in any state to the judges of 
the highest court is $2,500 per year, in Vermont. The 
highest is in New York, where the amount is $13,700 a year, 
a salary about as large as that of the justices of the United 
States Supreme Court. In Illinois, the justices of the su¬ 
preme court receive $12,000 a year; in a few states the salary 
is $10,000; in some it is $8,000. Less than a dozen states 
pay judges of their higher courts more than $5,000 a year. 
This scale of salaries is very low as compared with those in 
England, where the highest judges receive $25,000, and the 


THE JUDGES OF COURTS 115 

lowest, the county judges, $7,500 a year. A few states have 
provided a system of pensions for their higher judges who 
have served a certain number of years or who have reached 
a certain age, after which they are allowed or compelled to 
retire, but this provision has not yet become general. 

Trial of Civil Cases.—The cases brought before the courts 
for trial are of two general classes: (i) civil actions and 
(2) criminal actions. A civil action is a suit brought for 
the enforcement of a private right or to secure compensa¬ 
tion for damages on account of injuries sustained through 
the violation of one’s rights. Thus a creditor sues a debtor 
for refusing to pay a debt; an owner sues to recover property 
which has been wrongfully taken from him; a householder 
brings an action against his neighbor for trespassing upon 
his premises; and so on. The person who brings the action 
is called‘the plaintiff; the one against whom it is brought, 
the defendant; and the two together are known as the par¬ 
ties to the action. 

Beginning of a Civil Case. —A civil suit is usually started 
by the filing of a complaint containing a statement of the 
facts, with the court, which then issues a summons direct¬ 
ing the sheriff or constable to notify the defendant to ap¬ 
pear and make answer. If the plaintiff is a creditor and has 
reason to believe that the defendant is preparing to dispose 
of his property with the intention of defrauding him, he 
may ask the court to issue a writ of attachment authorizing 
the sheriff to take possession of the property. Or if the 
defendant is in wrongful possession of property belong¬ 
ing to the plaintiff the latter may ask the court to issue a 
writ of replevin requiring the officers to seize the property 
and turn it over to the plaintiff. In both cases, however, 
the plaintiff is required to give a bond for the costs of the 
suit and for the return of the property in case the court 


ii6 


THE STATE JUDICIARY 


should decide that it does not properly belong to him. The 
defendant now makes an answer or plea in which he denies 
the charges of the plaintiff as a whole or in part, or admits 
their truth but denies the right of action, or maintains that 
the court has no jurisdiction, or pleads something else in 
bar of the action. The complaint of the plaintiff and the 
answer of the defendant are known as the pleadings. 

The Trial .—The issue is now joined and the case is ready 
for trial. If it is a suit in equity, it is tried by the judge 
alone without a jury. If it is a suit at law, either party may 
demand a jury, but if both parties agree to waive a jury 
trial, the case is tried by the judge alone. Frequently civil 
cases are tried without juries, the parties preferring to leave 
the decision to the judge. If, however, a jury trial is pre¬ 
ferred, a list of qualified persons is prepared and from this 
list twelve men, or six, as the parties may agree upon, are 
selected to try the case. After the jury is sworn the attor¬ 
ney for the plaintiff generally makes a statement of the facts 
upon which he rests his case. He then calls his witnesses, 
who testify to their knowledge of the facts as they are ques¬ 
tioned by counsel. When the attorney for the plaintiff has 
completed the examination of each witness, the attorney 
for the defendant is allowed to cross-examine him. Wit¬ 
nesses are required to confine their testimony to what they 
know to be the truth, and are not permitted to tell what they 
believe to be true or what they have learned from mere 
hearsay. 

After the plaintiff has introduced all his evidence, the de¬ 
fendant’s case is presented in a like manner, the counsel for 
the plaintiff this time conducting the cross-examination. 
When the evidence for the defendant is all in, the plaintiff 
may introduce evidence in rebuttal, after which the defend¬ 
ant may do likewise. The next step is the argument of 


TRIAL OF CIVIL CASES 


117 

counsel. The attorney for each side addresses the jury and 
endeavors to convince it that the evidence sustains the 
facts which he has undertaken to prove. The burden of 
proof in civil cases is usually on the plaintiff, and his attor¬ 
ney generally has the privilege of closing the argument. If 
the plaintiff has failed to make out a case -the judge may 
dismiss the suit without giving the case to the jury, or if the 
evidence is such as to admit of but one conclusion, the judge 
may direct the jury to return a verdict in accordance there¬ 
with. But if the evidence leaves the question as to the facts 
in doubt, the case is given to the jury and it alone can make 
the decision. Before sending the jury to their room the 
judge instructs them as to the law applicable to the case, 
but generally in this country he cannot comment on the 
weight of the evidence or express any opinion as to the facts. 
The jury, after receiving its instructions, retires from the 
court room and deliberates in secret. If, after a reasonable 
time, the jurymen cannot agree upon a verdict they so re¬ 
port to the judge and are discharged, and the trial must be 
gone through with again. 

Judgment; Execution .—After the return of the verdict, 
the judge enters judgment in accordance therewith. In 
most civil cases the judgment, if for the plaintiff, requires 
the defendant to pay him a certain sum of money as a com¬ 
pensation for the damages he has sustained. If he refuses 
to pay, an ‘‘execution” is issued, that is, the sheriff is re¬ 
quired to seize and sell a sufficient amount of the defendant’s 
property to satisfy the judgment. If the suit is one in equity 
the “decree,” as the decision is called, is not usually for the 
payment of damages but is a command to the defendant to 
do a specific thing, as, for example, to carry out a contract 
or to pay a debt; or to refrain from doing something, such 
as maintaining a nuisance to the injury of the defendant. 


ii8 


THE STATE JUDICIARY 


Appeal. —After the verdict has been rendered, the losing 
party may generally take an appeal to a higher court on the 
ground that errors were committed by the judge in the 
course of the trial, as, for example, the admission of im¬ 
proper evidence or the exclusion of proper evidence; or be¬ 
cause the verdict was contrary to the law and the evidence. 
The higher court either affirms the judgment of the lower 
court or reverses it. If it affirms the judgment, it must 
then be carried out; if it reverses the judgment a new trial 
is granted and the whole procedure is gone through again. 

Trial of Criminal Cases.—Criminal actions, unlike civil 
actions, are brought, not by the injured party, but by the 
state whose peace and dignity have been violated by the 
act complained of. The officer who brings the action in the 
name of the state is called the prosecuting attorney, the dis¬ 
trict attorney, or the staters attorney. He conducts prelimi¬ 
nary investigations into crimes and presents cases to the 
grand jury for indictment. If the grand jury returns the 
indictment, that is, decides that the accused shall be held 
for trial, the prosecuting officer takes charge of the case and 
conducts it for the state. 

The Arrest. —Usually the first step in the trial of a person 
charged with crime is to cause his arrest. The person in¬ 
jured, or any one else who may have knowledge of the crime, 
appears before a magistrate and makes a complaint setting 
forth the facts in regard to the crime. If the magistrate is 
satisfied as to the truth of the complaint, he issues a war¬ 
rant commanding the sheriff or some other police officer to 
arrest the accused. The warrant must particularly describe 
the offense, the place where committed, and the circum¬ 
stances under which it was committed, and must give the 
name of the person to be arrested. But in some cases an 
arrest may be made without a warrant, as when an offender 


TRIAL OF CRIMINAL CASES 


I19 

is seen committing a crime or when an officer has good rea¬ 
son to believe that the person who is charged with com¬ 
mitting a crime is the guilty person. In practice, police¬ 
men frequently arrest on mere suspicion, and if they do so 
in good faith they will rarely be held liable for damages. 
Any private individual, as well as an officer, may arrest 
without warrant a person whom he sees committing a 
crime. He may also arrest a person whom he suspects of 
having committed a capital crime, although without per¬ 
sonal knowledge of his guilt. ^ 

Commitment .—When arrested the accused is brought be¬ 
fore a justice of the peace and examined. If the justice of 
the peace, after such examination, believes that the accused 
should be held for trial, he is committed to jail. If the of¬ 
fense is a minor one it can be tried by the justice of the 
peace. If it is a more serious crime the justice of the peace 
can hold the offender to await the action of the grand jury. 

Bail .—If the offense is not a capital one, the accused can 
secure his release from the jail while awaiting trial by giv¬ 
ing bail. That is, he can get one or more persons to obligate 
themselves to pay to the state a certain sum of money 
should he fail to appear for the trial at the time set. Such 
persons are called sureties, and they have a certain power of 
control over the accused as a means of insuring his appear¬ 
ance for the trial. The constitutions of all the states allow 
the privilege of bail except in capital cases, and they all 
declare that the amount-of bail required shall not be ex¬ 
cessive, that is, shall not be more than is sufficient to insure 
the appearance of the accused for trial. What this amount 
is must be determined by the judge according to his own 
discretion, due regard being paid to the gravity of the of¬ 
fense, the nature of the punishment, and the wealth of the 
1 Baldwin, The American Judiciary, p. 227. 


120 THE STATE JUDICIARY 

defendant or his friends. If the offender has been bound 
over to await the action of the grand jury, the next step in 
the proceedings is the indictment. 

The Grand Jury is one of the ancient institutions of the 
common law, and for a long time was cherished as one of the 
indispensable parts of the machinery of a criminal trial. It 
is a small body of men selected from the citizens of the 
county for the purpose of inquiring into violations of the 
law. At common law the number of persons constituting 
the grand jury was twenty-three, but many of the states 
have changed this by legislative act, a common number 
being fifteen. The grand jury is chosen by lot from a care¬ 
fully prepared list of persons in the county, qualified to 
serve. The members are sworn in on the first day of the 
term of court and are then ‘‘charged” by the judge to make 
a diligent inquiry into all cases of crime that have been 
committed in the county and which have come to their 
knowledge, and to return indictments against such persons 
as in their opinion should be held for trial. They then re¬ 
tire to their room and conduct their investigations in secret. 

The Indictment .—It must be remembered that the pro¬ 
cedure of a grand jury is not in the nature of a trial of the 
accused; it is only an inquiry to ascertain whether there is 
sufficient evidence of guilt to warrant his being put on trial. 
In conducting this investigation, the grand jury hears only 
one side of the case, that of the prosecution, neither the 
accused or his witnesses being heard. The prosecuting at¬ 
torney attends the sessions of the grand jury and aids it in 
the conduct of its inquiries. He prepares the indictment 
and it is often upon his recommendation that the grand 
jury decides to indict or not to indict. In some states the 
procedure of indictment by grand jury for all offenses, or 
for all except the most serious ones, has been done away 


TRIAL OF CRIMINAL CASES 


I2I 


with, the accusation taking the form of an “information” 
filed by the prosecuting attorney. One of the reasons given 
for abolishing the grand jury is that it is often a source of 
delay since it can be called only when the court is in session. 
Inasmuch as the court is frequently not in session in some 
communities for long periods in every year, accused per¬ 
sons under arrest cannot have their cases promptly dis¬ 
posed of. 

The Arraignment .—After the accused has been indicted 
the next step is to bring him before the court and arraign 
him. The charge is first read to him and he is directed to 
plead. If he pleads guilty, no further action is taken and 
the judge imposes the sentence. If he pleads not guilty, the 
trial proceeds. If he has no counsel to defend him, the 
court appoints some member of the local bar to act as his 
attorney, and the lawyer so designated is under a profes¬ 
sional obligation to undertake the defense and do all in his 
power to clear him. In this way the murderer of President 
McKinley was enabled to have the benefit of counsel. 
Many writers on criminal law, indeed, contend that the 
state ought to employ regular public defenders for accused 
persons just as it employs public prosecutors, since it 
should be equally interested in seeing an innocent man 
acquitted as in seeing a guilty one convicted. 

Selection of the Jury .—The next step is the impaneling 
of a jury of twelve men to try the case. The law requires 
that the jury shall be selected from the community in 
which the offense was committed, in order that the accused 
may have the benefit of any good reputation which he may 
enjoy among his neighbors. The jury is chosen by lot 
from a list of persons qualified to perform jury service, and 
the jurymen are sworn to return a verdict according to the 
law and the evidence. Each side is allowed to “challenge,” 


122 


THE STATE JUDICIARY 


that is, ask the court to reject, any juror who has formed an 
opinion of the guilt or innocence of the accused or who is 
evidently prejudiced. In addition, each may reject a cer¬ 
tain number of jurors “peremptorily/’ that is, without 
assigning a cause. 

The Trial .—After the jury has been impaneled, the 
prosecuting attorney opens the trial by reciting the facts 
of the case and stating the evidence upon which he expects 
to establish the guilt of the accused, for the law presumes 
the prisoner to be innocent, and the burden of proof to show 
the contrary rests upon the state. The procedure of ex¬ 
amining and cross-examining the witnesses is substantially 
the same as in the trial of civil cases. There are well- 
established rules in regard to the admissibility of evidence 
and the weight to be attached to it, and if the judge com¬ 
mits an error in admitting improper evidence or in exclud¬ 
ing evidence that should have been admitted in the inter¬ 
ests of the accused, the prisoner may, if convicted, have 
the verdict set aside by a higher court and a new trial 
granted him. One of the rules of procedure is that the jury 
must be satisfied beyond a reasonable doubt, from the 
evidence produced, that the accused is guilty. 

Verdict; Sentence .—After being charged by the judge as 
to the law applicable to the case, the jury retire to a room 
where they are kept in close confinement until they reach 
a unanimous verdict. If they cannot reach an agreement, 
they notify the judge, who, if satisfied that there is no 
longer any possibility of an agreement, discharges them; 
then the accused may be tried again before another jury. 
If a verdict of not guilty is returned, the court orders the 
prisoner to be set free; if a conviction is found, sentence is 
imposed and the punishment must be carried out by the 
sheriff or some other officer. The usual punishment is fine. 


TRIAL OF CRIMINAL CASES 


123 

imprisonment in the county jail or state penitentiary, or 
death inflicted by hanging or electrocution.^ In a few 
states, notably Maine, Michigan, Wisconsin, Rhode Island, 
and Kansas, punishment by death has been abolished. 

Probation; Reformation .—Imprisonment is generally for 
a specified period, though recently in a number of states 
the indeterminate sentence has been provided, that is, the 
judge is allowed to sentence the offender for an indefinite 
period, the length of which will depend upon the behavior 
of the prisoner and on the promise which he may show of 
leading a better life after being released. When thus re¬ 
leased he may be placed on probation and required to re¬ 
port from time to time to a probation officer in order to 
show that his conduct is satisfactory. If unsatisfactory, he 
may be taken up and remanded to prison. The tendency 
now in all enlightened countries is to adopt a system of 
punishment that will not only serve as a deterrent to crime 
but at the same time help to reform the criminal and make 
a better citizen of him. The old idea that the purpose of 
punishment was revenge or retribution has nearly every¬ 
where disappeared, and in place of the severities of the old 
criminal code we have introduced humane and modern 
methods which are probably just as effective in deterring 
others from wrongdoing, and besides conduce to the refor¬ 
mation of many unfortunate criminals. 

References.— Baldwin, The American Judiciary, chs. viii, xii, xiv, 
XV, xvii, xxii. Beard, American Government and Politics, ch. xxvi. 
Bryce, The American Commonwealth (abridged edition), ch. xli. 
Hart, Actual Government, ch. ix. McCleary, Studies in Civics, 
chs. ii, vii. Willoughby, Rights and Duties of Citizenship, ch. vii. 

Illustrative Material.—i. The legislative manual or blue book of 
the state. 2. A map showing the division of the state into judicial 
districts. 3. Copies of legal instruments, such as warrants of arrest, 
indictments, subpcenas, summonses, etc. 


124 


THE STATE JUDICIARY 


Research Questions 

1. What are the several grades of courts in your state? In what 
judicial district or circuit do you live? Who is the judge for that 
district or circuit? 

2. What are the terms of the supreme court justices? The circuit 
or district judges? The county judges? Do you think these terms 
are too short? Would a good behavior term be better? 

3. What is the pay of judges in yoiir state? Do you think these 
salaries are large enough to attract the best lawyers of the state? 
Are the salaries fixed by the constitution or by act of the legislature? 

’ 4. How are the judges chosen? Has the existing method given 
satisfaction? Do you think judges should engage in politics? Where 
they are chosen by popular election, should they canvass the district 
or state as other candidates do? 

5. Are there separate chancery (equity) courts in your state? 
separate probate courts? separate juvenile courts? If not, what 
courts have jurisdiction of such matters as belong to such courts? 

6. How are justices of the peace in your state chosen? What 
is the extent of their jurisdiction in civil cases? in criminal cases? 
What is the method of compensating justices of the peace? 

7. How often is the circuit court held in your district? How often 
the county court? 

8. How are juries selected in your state? How could a better class 
of jurors be selected? Do the good citizens show a disposition to 
shirk jury duty? What are the merits and demerits of the jury sys¬ 
tem? Do you think a unanimous verdict ought to be required in 
criminal cases? 

Q. Is the grand jury retained in your state for making indictments? 
If not, how are indictments prepared? What is the difference be¬ 
tween an indictment and an information? 

10. Why are citizens never justified in resorting to lynch law even 
when there is a flagrant miscarriage of justice? Has there ever been 
a case of lynching in your county? 

11. What are some of the causes for the “delays of the law”? How 
could delays be shortened and the trial of cases made more prompt? 

12. What are the qualities of a good judge? Upon whom are the 
rights of the people most dependent, the executive officers or the 
judges? 


CHAPTER VII 


SUFFRAGE AND ELECTIONS 

Nature of the Elective Franchise. —The right of suffrage, 
that is, the right to take part in the choice of public officials, 
is sometimes said to be a natural and inherent right of the 
citizen, but in practice no state acts upon such a principle. 
The better opinion, as well as the almost universal practice, 
is that suffrage is not at all a matter of right, but a privilege 
bestowed by the state upon those of its citizens who are 
qualified to exercise it intelligently and for the public good. 
No state allows all its citizens to vote; all the states restrict 
the privilege to those who are at least twenty-one years of 
age; all confine the privilege to those who are hona fide 
residents of the community; and some require educational, 
property, and other qualifications of various kinds. Most 
of them deny the right to women, though women are citizens 
equally with males. On the other hand, nine states allow 
aliens who have formally declared their intention of becom¬ 
ing citizens, to vote equally with citizens in all elections.^ 
The terms ‘‘voter” and “citizen,” therefore, ^re not identi¬ 
cal or synonymous. 

Existing Qualifications for Voting. —In the early days of 
our history restrictions on the voting privilege were much 
more numerous and stringent than now. Most of the early 
constitutions limited the privilege to property owners, and 

1 These states are Arkansas, Indiana, Kansas, Missouri, Nebraska, 
Oregon, South Dakota, Texas, and Wisconsin. 

125 


126 


SUFFRAGE AND ELECTIONS 


some prescribed religious tests in addition. It is estimated 
that at the beginning of the nineteenth century not more 
than one person in twenty had the right to vote, whereas 
now probably the proportion is one in five. 

Federal Restriction .—In the United States the power to 
prescribe the qualifications for voting in both national and 
state elections belongs to the individual states, subject only 
to the condition that in fixing the suffrage they cannot 
abridge the privilege on account of race, color, or previous 
condition of servitude. This provision is found in the Fif¬ 
teenth Amendment to the Federal Constitution, adopted 
in 1870, and its purpose was to prevent the states from 
denying the privilege of suffrage to negroes who by the 
Fourteenth Amendment, adopted in 1868, had been made 
citizens of the United States. This provision does not, 
however, prevent the states from limiting the privilege on 
other grounds, such as illiteracy, criminality, vagrancy, 
and the like. 

The Residence Requirement .—In the first place, all the 
states require residence for a specified period in the state 
and in the election district in which the voter exercises his 
privilege of voting. The purpose of this requirement is to 
confine the franchise to those who have become identified 
with the interests of the community, and to exclude outsiders 
or newcomers who are unfamiliar with local conditions and 
unacquainted with the qualifications of the candidates. 
The required length of residence in the state ranges from 
three months in Maine to two years in most of the Southern 
states, the more usual requirement being one year. The 
period of residence required in the county or election dis¬ 
trict is shorter, the most common requirement being three 
months in the county and one month in the election district. 

Educational Tests,—In ^.ddition to this requirement, 


EXISTING QUALIFICATIONS FOR VOTING 127 

nearly one third of the states insist upon some kind of edu¬ 
cational test. Connecticut in 1855 was the first state to re¬ 
quire ability to read and write. Massachusetts followed her 
example shortly thereafter, and the precedent set by these 
two states was soon followed, with modifications, by Cali¬ 
fornia, Maine, Wyoming, New Hampshire, Delaware, and 
Washington. 

The adoption of the Fifteenth Amendment in 1870, which 
indirectly conferred the right to vote on the negro race, and 
the unfortunate results which followed the enfranchise¬ 
ment of the large mass of blacks in the South, led some of 
the Southern states to adopt educational and other restric¬ 
tions to diminish the evils of an ignorant suffrage. Missis¬ 
sippi in 1890 took the initiative among Southern states, 
and required ability either to read the constitution of the 
state or to understand it when read by an election officer. 
South Carolina followed her example in 1895, but with the 
modification that an illiterate person who was the owner 
of at least $300 worth of property should not be disfran¬ 
chised. Louisiana, Alabama, North Carolina, Virginia, 
and Oklahoma s.oon followed with restrictions based on 
the same principle. In several of these states, however, the 
educational qualification does not apply to those who were 
voters in 1867 (when the negro race was still unenfran¬ 
chised), or to their descendants, or to those who served in the 
army or navy of the United States or of the Confederacy 
during the Civil War. 

Other Persons Excluded of the states deny the 
right to vote to convicted criminals, idiots, and insane per¬ 
sons; some, particularly those of the South, insist that the 
voter must have paid his taxes; some exclude vagrants and 
persons without employment; and some, paupers and in¬ 
mates of public institutions. 


128 


SUFFRAGE AND ELECTIONS 


Woman Suffrage.—Most of the states restrict the right 
to vote in all general elections to men, the exceptions being 
Colorado, Idaho, Utah, Wyoming, and Washington, where 
women enjoy the suffrage equally with men in all elections, 
national, state, and local. In many of the states women are 
allowed to vote in school elections; in a few they are per¬ 
mitted to vote in municipal elections; and in a few they are, 
if taxpayers, allowed to vote on proposed bond issues. 

Arguments Against Woman Suffrage .—The principal argu¬ 
ments advanced against the enfranchisement of women are: 
that active participation of women in political affairs will 
tend to destroy their feminine qualities by forcing them 
into political campaigns, and cause them to neglect the 
young which it is their mission to rear; that it will tend to 
introduce discord into family life by setting husband against 
wife on political issues; that since women are incapable of 
discharging all the obligations of citizenship which devolve 
upon men, such as serving in the army, militia, or police, 
they ought not to demand all the privileges of citizenship; 
and finally that a majority of the women do not desire the 
privilege of voting and would not exercise it if permitted 
to do so. It is better, therefore, say the opponents of woman 
suffrage, to give the ballot to the husband alone and leave 
to the wife the right to exert her powerful influence in be¬ 
half of good government without actually herself engaging 
in political contests. 

Arguments in Favor of Woman Suffrage .—In favor of giv¬ 
ing the ballot to women, it is argued that differences of sex 
do not constitute a logical or rational ground for granting or 
withholding the suffrage if the citizen is otherwise quali¬ 
fied; that women should be given the ballot for their own 
self-protection against unjust class legislation; that since 
millions of them have become wage earners and are compet- 


WOMAN SUFFRAGE 


120 

ing with men in nearly every trade and occupation and in 
many of the learned professions, the argument that the 
wage earner should have the ballot as a means of defense 
applies equally to women as to men; that since the old civil 
disabilities to which they were formerly subject, such as the 
inability to own property, enter into contracts, and engage 
in learned professions, have been removed, it follows logically 
that their political disabilities should be removed also; and 
that since many of them have become property owners and 
taxpayers it is unjust to permit the shiftless non taxpaying 
male citizen to take part in choosing public officials and at 
the same time deny the right to women taxpayers. More¬ 
over, it is argued that the admission of women to a share in 
the management of public affairs would inure to the common 
good by introducing into political life a purifying and en¬ 
nobling element which would not only elevate the tone of po¬ 
litical life but also conduce to better government. Women 
are vitally interested in such matters as taxation, educa¬ 
tion, sanitation, labor legislation, pure food laws, better 
housing conditions in the cities, the prohibition of the 
saloon, and many other matters, and it is maintained that 
in those states where they have been given the right to vote 
they have been instrumental in securing wise legislation 
on many of these subjects. Finally, it is argued, the fact 
that some women do not care for the privilege is no reason 
why it should be denied to those who do desire it. 

The Duty to Vote. —The better opinion is that the exer¬ 
cise of the suffrage is not only a high privilege conferred by 
the state on a select class of its citizens, but is a duty as 
well, and one that ought not to be shirked or carelessly per¬ 
formed. Among the great dangers of popular government 
are indifference and apathy of the voters. If popular gov¬ 
ernment is to be a success, we must have not only an 
Govt. U. S.—g 


SUFFRAGE AND ELECTIONS 


130 

intelligent and honest electorate but also one which is wide¬ 
awake and vigilant. Under a democratic system of govern¬ 
ment like ours, the character of the government is largely 
what the voters make of it. If we are to have capable and 
honest officials to enact laws and enforce them, the voters 
must see to it that such men are nominated and elected and 
compelled by the pressure of a vigorous and alert public 
opinion to the faithful performance of their duties. Every 
voter should inform himself as to the qualifications of can¬ 
didates for office and as to the merits of policies upon which 
he is called to express an opinion, and having done this, he 
ought to go to the polls and contribute his share to the elec¬ 
tion of good men and the adoption of wise public measures. 

Compulsory Voting .—The question has sometimes been 
discussed as to whether one who possesses the privilege of 
voting ought not to be legally required to exercise it just 
as the citizen is compelled to serve on the jury or in the 
militia. Several European countries, notably Belgium and 
Spain, have adopted a system of compulsory suffrage under 
which failure to vote is punishable by disfranchisement, 
an increase of taxes, publication of the name of the negli¬ 
gent voter as a mark of censure, etc. But however repre¬ 
hensible the conduct of the citizen who neglects his civic 
obligations and duties as a member of society, it is hardly 
the province of the state to punish the nonperformance of 
such a duty. Moreover, if required by law the duty might 
be exercised as a mere form and without regard to the pub¬ 
lic good. Better results are likely to be obtained by treat¬ 
ing it as a moral duty and a privilege rather than a legal obli¬ 
gation. But public opinion ought to condemn the citizen 
who without good cause neglects his obligations to society, 
one of which is the duty to take part in the election of those 
who are responsible for the government of the country. 


THE REGISTRATION REQUIREMENT 131 

The Registration Requirement.—Nearly all of the states 
now require as a preliminary condition to the exercise of 
the suffrage that the voter shall be “registered,” that is, 
tha the shall have his name entered on a list containing 
the names of all qualified voters in the election district who 
are entitled to take part in the election. The purpose of this 
requirement is to prevent double voting and other abuses 
of the electoral privilege. In densely populated districts 
it is impossible for the election judges to know personally 
all the voters, and hence without some means of identifying 
them it would be difficult to prevent persons outside the 
district from taking part in the election or to prevent those 
properly qualified from voting more than once. In a few 
communities, however, the old prejudice against such a 
requirement still prevails; for example, the constitution of 
Arkansas declares that registration shall not be required 
as a condition to the exercise of the elective franchise. 

Methods of Registration .—Two general types of registra¬ 
tion requirements are now in existence. One is the require¬ 
ment that the voter shall present himself in person every 
year before the board of registration and get his name on 
the list. The chief objection to this requirement is that 
it constitutes something of a burden to the voter and often 
disfranchises him on account of his negligence or inability 
to register on the day prescribed. 

The other type of registration requirement is in force 
in Massachusetts, Pennsylvania, and many other states. 
Where this system prevails, when the voter’s name is placed 
on the registration list, it is kept there so long as he remains 
in the district, and it is unnecessary for him to register each 
year. The principal criticism of this plan is that the regis¬ 
tration list is less likely to be correct, because the names of 
persons who have died or moved away are likely to be kept 


132 SUFFRAGE AND ELECTIONS 

on the list; whereas under the other method they would be 
stricken off. 

Time of Holding Elections.—National elections for the 
choice of President and Vice President are held on the 
Tuesday after the first Monday in November every four 
years. Elections for representatives in Congress are held 
on the same date, in most states,^ every second year. Elec¬ 
tions for state officers are generally held on the same day 
as national elections, though where state officers are chosen 
annually, state elections of course come oftener. A few 
states, however, prefer to hold their elections at a different 
date from that on which national elections are held. Four 
states, Kentucky, Maryland, Massachusetts, and Virginia, 
hold theirs in the odd years, while national elections always 
occur in the even-numbered years. A few others which 
have their elections in the even-numbered years hold them 
at a different time of the year from that at which national 
elections are held. Thus Arkansas, Maine, and Vermont 
hold their state elections in September, Georgia holds her 
election in October, and Louisiana in April. 

In many of the states an attempt is made to separate 
national and state elections from municipal elections in 
order to encourage the voters to select municipal officers 
without reference to state or national issues. Thus in New 
York, where national and state elections occur biennially 
in the even-numbered years, city elections are held in the 
odd-numbered years. Likewise, in Illinois, city elections 
are held in April, while state and national elections are held 
in November. 

1 In Maine and Vermont, by virtue of special provisions in the act 
of Congress relating to the election of representatives, Congressional 
elections may be held at another time. In both states they are now 
held in September. 


TIME OF HOLDING ELECTIONS 


133 

Other local elections—township, county, and village— 
are held in some cases at the same time as the state election, 
and in other cases such elections, or some of them, are held 
on different days. 

Manner of Holding Elections.—Before an election can 
be held, due notice must be given of the time and place at 
which it is to be held and the offices to be filled or the ques¬ 
tions of public policy to be submitted to the voters. For 
the convenience of the voters the county or city is divided 
into districts or precincts each containing a comparatively 
small number of voters, and for each district there is pro¬ 
vided a polling place with the necessary number of booths, 
ballot boxes, and other election paraphernalia. The re¬ 
sponsibility for preparing the ballots, giving notice of the 
election, and providing the necessary supplies is intrusted 
to certain designated officials. Sometimes the county clerk, 
sometimes the city clerk, and sometimes, as in the large 
cities, a board of election commissioners, performs these 
duties. 

Election Officers .—At each polling place, on election day, 
there is a corps of election judges or inspectors, poll clerks, 
ballot clerks, and the like. Each party is allowed to have 
one or more watchers, and frequently there is a police offi¬ 
cial to maintain order at the polls. While the polls are 
open, electioneering within a certain number of feet of tl]e 
election place is forbidden, and usually no person except 
the election officers, the watchers, and the person who is 
casting his ballot are allowed in the polling room. Every 
polling place is equipped with one or more voting booths 
which must be so constructed as to insure secrecy on the 
part of the voter while he is marking his ballot. The polls 
are opened at a designated hour, and before the balloting 
begins the ballot boxes must be opened and exhibited to 


SUFFRAGE AND ELECTIONS 


134 

show that they are empty, after which they are locked 
and the casting of the ballots begins. 

Evolution of the Ballot.—In the early days of our history, 
voting was by viva voce, that is, by living voice. Each voter 
as he appeared at the polling place was asked to state the 
names of the candidates for whom he desired to vote, and 
this he did in a distinct voice that could be heard by the 
bystanders as well as the election officials. The obvious 
objection to such a method was that it did not secure se¬ 
crecy, and moreover it stimulated bribery because it was 
easy for a person who purchased a vote to see that the vote 
was delivered as paid for. The states soon began to experi¬ 
ment with the method of voting by ballot, and the advan¬ 
tages were so evident that in time this method was adopted 
in all of them, the last state to abandon the old method 
being Kentucky in 1891. 

At first written ballots were generally used; then it be¬ 
came the practice for each candidate to print his own bal¬ 
lots; and later each party would put on the same ballot the 
names of all the party candidates and have them printed 
at the expense of the party. Each of these methods had its 
disadvantages. When the last method prevailed, for ex¬ 
ample, the ballots of the different parties were printed on 
different colored paper, so that it was easy to ascertain a 
voter’s intentions by the color of the ballot in his possession. 
These ballots were distributed days before the election 
and were frequently marked by the voter before going to 
the polls. Such a system not only made secret voting diffi¬ 
cult, but it afforded abundant opportunities for using undue 
influence over certain classes of persons to compel them 
to vote for particular candidates. To remove these and 
other evils which increased as time passed, the Australian 
ballot system, with modifications, was introduced into this 


EVOLUTION OF THE BALLOT 


135 


country, first by the state of Massachusetts in 1888, and 
in one form or another it is now found in practically all the 
states. 

The Australian Ballot.—The distinguishing features of 
the Australian system are the following: The names of all 
the candidates of every political party are placed on a 
single ballot; this ballot is printed at public expense and not 
by the candidates or parties; no ballots are distributed be¬ 
fore the election, and none are obtainable anywhere except 
at the polls on election day, and then only when the voter 
presents himself to vote; and the ballot can be marked only 
in voting booths provided for the purpose, and in absolute 
secrecy. 

The Australian system has been more or less modified 
in all the states where it has been introduced, so that it 
really does not exist in its pure form anywhere in this coun¬ 
try, the nearest approach to it being the Massachusetts 
system. The prevailing forms may be reduced to two gen¬ 
eral types: the ‘‘office column” type, of which the Massa¬ 
chusetts ballot is a good example; and the “party column” 
type found in New York and many other states. 

The '' Office Column ” Ballot has the names of the candi¬ 
dates for each office arranged in alphabetical order under the 
title of the office, and to vote such a ballot it is necessary 
for the voter to look through each column, pick out the 
candidate he favors, and mark a cross in a blank space 
opposite each name for which he votes. To do this requires 
not only considerable time, but a certain amount of in¬ 
telligence and discrimination. 

The ''Party Column'' Ballot arranges the candidates, 
not under the offices which they are seeking, but in parallel 
columns according to political parties, there being a column 
for each party. Opposite each candidate’s name on the 


136 


SUFPRAGE AND ELECTIONS 


To vote for a Pereoe, mark a Cross X the Square at \x To vote for a Person, mark a Cross X i® ** V 

the right of the Party W^me, or Political Designation. /\ the right of the Party Wame, or Political Designation. /\ 


GOVERNOR . 


James f. CAKEY_o^n«.'.riiiu 

. . SovUiUSl 1 

KEEN S. DUAPEK-oraoiwdale 

. . Republican 

WALTER J. HOAR—of W«re«it«r 

. SocUli!*' Labor 1 

WILLIAM N. OSGOOD-orLoweu . 

Independence Lea^rue 

tl.VMES H. VAUET'-oT^ atertowB 

. . Jlemocratic 1 

WII.LAKD 0. WVUE-ofBe.erlr . 

. • Prohibitlou j 

1 

LIEUTENANT GOVERNOR . 

. . . Mark ONE. 

OHAICLES j, ItA ETi b N — of Mviro^ • 

, . Deiitocratic I 

JOAO C'LACTDINO —ofNrw Ddford 

. SocInllMt l.ahor | 

LOUIS A. rROTHINGHAM-.rBo.too 

• . Republican 

•fONN HALL, Jr. — orWe«i8prtBsacM 

. . Socialist 1 

HUBERT.I. McCartney- orKinpioo 

Independence Leatrne | 

PRANK N. 'RAND-orH.TorbUi . 

. . Prohibition I 

1 


CONGRESSMAN — Tfulb Dt.trlc. . 

Mark ONE. 

J. .MI'l'CHELL GALV 1 N ~of • 

0 . Republican | 

CHARLES J. KIDNEY-of 

Indcpendenee Lea^ne | 

.fuSEI^H K. O’CON.NELL-orvtMwn . 

. . Democratic | 

HAZARD STEVENS-orBoji... . 

. . Free Trader | 

L 

COUNCILLOR—SeeooS DUtrlei . 

Mark ONB. 

ALBION F. BEMIS —ofBrookiioc 

. . Republican | 

CHARLES Q. KIDDER—of Taunton • 

Inde|>endence I^eague | 

I 

SENATOR — Plrot Norfolk DUirlet . 

Mark ONB. 

JAMES K. KOLE^ — ofRaoiSoiph . 

. Democratic | 

.IOHN j. OALLAOHER-ofHrd. Port 

BociaHst 1 

EUGENE C. HULTMAN-orQnioer . 

• Repubitean | 

1 


Office Column Ballot 
Part of Massachusetts Ballot of November, 1908 



Democmic Ticket. 


Republican Ticket. 


Probibition Ticket. 


E 

1 For Covemor, 

IHOUAS R. MARSHAU. 

E 

For Covemor, 

JAMES F„ WATSON. 

PRom. 

For Covemor, 
SUMNER W. HAYaVFeS. 


f Fnr LSeut4»naBt-Oovemer» 

1 FRANK J. HALL. 





E 

E 

For Liautcnant-Govemcr, 
FREMON’r COOD^HaVE. 

PROVt. 

For Lieutenont-Govertior, 
ABRAHAM HUNTSINQER 


For SecBtUry of 8uto, 

JAMES F. COX. 





E 

E 

For Seeretary of State, 

FRED A. SIMS. 

PROfIt. 

For Secretary of Stale. 
WILLIA.M H. HaU 


For Auditor of State, 

MARION BAILEY. 





E 

E 

For Auditor of State, 

JOHN C. BILLHEIMER. 

pnow- 

For Auditor of State, 
HENRY COONS. 


For Tmaaorer of State, 

JOHN ISEaCBAttCER. 


Tor Treasurer of State, 

OSCAR HADLEY 



B 

E 

mom. 

For Treaaurer of State, 
william H. CROWDEfl, 


Party Column Ballot 
Part of Indiana Ballot of November, 1908 


tm V’ 



























































THE AUSTRALIAN BALLOT 


137 


“party column” ballot is a blank space, and at the head of 
each column is a circle and usually a device or emblem to 
indicate the party. By making a mark in this circle the 
voter may cast a ballot for all the candidates of the party. 
This is called “straight” voting. He may if he wishes, 
however, vote a “split” ticket by putting a cross in the 
blank spaces opposite the names of candidates of his choice 
in the different columns. The chief objection that has been 
urged against this type of ballot is that by making it so 
easy to vote a “straight” ticket, it encourages strict party 
voting, whereas independent voting, especially in city elec¬ 
tions, should be encouraged by every possible means. 

The “office column” ballot, on the other hand, encourages 
independent voting by making it just as difficult to vote a 
“straight” ticket as a “split” one. In Massachusetts there 
has been a remarkable amount of independent voting, due 
partly to the form of ballot used. The “office column” 
type of ballot is now used for all elections in about one 
fourth of the states, and in a number of others for municipal 
elections. 

Ballot Reform.—In recent years there has been con¬ 
siderable discussion of the subject of ballot reform, and not 
a little experimenting with different schemes. Political 
reformers generally demand the abolition of the “party 
column” form, or at least the abolition of the party circle, 
as a means of discouraging straight party voting, but the 
professional politicians insist upon its retention. What¬ 
ever may be the form ultimately adopted, one reform is 
desirable, namely, greater simplification, to the end that 
the electoral franchise may be exercised more intelligently 
and easily. In some of our states the number of elective 
offices has increased to such proportions, and the ballot to 
such size, that it has become a real burden to vote it. 


SUFFRAGE AND ELECTIONS 


13S 

A ballot used in Chicago in 1906 contained the names of over 
330 candidates and was over two feet in length and nearly two feet in 
width. From this bewildering array of names the voter was com¬ 
pelled to pick out his choice for the following offices: state treasurer, 
state superintendent of public education, trustees of the University of 
Illinois, representative in Congress, state senator, representative in 
the state assembly, sheriff, county treasurer, county clerk, clerk of 
the circuit court, county superintendent of schools, judge of the 
county court, judge of the probate court, members of the board of 
assessors, judges of the municipal court for the two-year term (nine 
to be elected), members of the board of review, president of the board 
of county commissioners, county commissioners (ten to be elected on 
general ticket), trustees of the sanitary district of Chicago (three to 
be elected), clerk of the municipal court, chief justice of the municipal 
court, judges of the municipal court (nine to be elected), judges of the 
municipal court for the four-year term (nine to be elected). At a 
recent election in New York city the ballot used was four feet long 
and contained nineteen party columns. In North Dakota in 1910 a 
ballot was used which was seven feet long. 

To vote ballots containing many names requires a good 
deal of care, if not experience, to avoid error which will 
result in having it thrown out, for the regulations governing 
the marking of the ballot are very strict and must be ob¬ 
served if the vote is to be counted. Accordingly, elaborate 
instructions covering large sheets are posted throughout 
the election district and at the polls for the guidance of 
the voters, and these have to be carefully studied by inex¬ 
perienced voters who desire to avoid mistakes. One result 
of the increasing complexity of the ballot is to confine the 
suffrage more and more to the professional politicians who 
understand how to vote such ballots, and to discourage 
those who are not politicians. 

Voting Machines .—A few sjtates have adopted voting 
machines, especially for their large cities. These are so 
arranged that the voter may, by going into a booth and 


BALLOT REFORM 


139 


pulling a number of knobs, register his vote quickly and 
without the danger of spoiling his ballot. When the 
polls are closed the results are already recorded on a 
dial, and the long delay in counting the returns is elimi¬ 
nated. The chief objection to the voting machine, how¬ 
ever, is the expense, and this has prevented its more general 
adoption. 

Formalities of Voting.—When the voter presents himself 
at the polls he must announce his name and address to the 
election officials. If his name is found on the registration 
list, he is given a ballot and his name entered on the poll 
book. He then enters a booth, where he marks his ballot, 
for which purpose he is allowed to remain therein not exceed¬ 
ing a certain length of time. He must not mark his ballot 
in such a way that it can be identified after it has been 
placed in the ballot box, and no erasures are allowed. If he 
spoils his ballot he will be given another, and if he is phys¬ 
ically unable to mark it, or if, in some states, he is illiterate, 
. he will be allowed the assistance of two persons representing 
different political parties. His right to vote may be chal¬ 
lenged, in which case he will be required to identify himself 
or “swear in” his ballot, a record of which must be duly kept. 
When he has marked his ballot he must fold it in such a 
manner as to conceal its face, and hand it to one of the elec¬ 
tion judges, who announces the name of the voter; the fact 
of his voting is recorded, and the ballot placed in the 
box. 

Most states have laws allowing voters to be absent from 
their employment for a certain length of time on election 
day without deduction of wages, so that employers who 
might wish to do so cannot prevent them from exercising 
the voting privilege. 

At a certain hour prescribed by law the polls are closed, 


SUFFRAGE AND ELECTIONS 


140 

after which the votes are counted; and when this task is 
complete the returns are announced. Generally the ballots 
must be preserved for several months in order that an op¬ 
portunity may be offered for a recount in case the election 
is contested. Usually the ballots cannot be reopened and 
recounted except by order of a court or of the committee 
on elections of the legislature. 

Legislation Against Fraudulent Voting; Corrupt Practices 
Acts.—For a long time in this country there was little legis¬ 
lation designed to regulate the conduct of elections and to 
protect the exercise of the electoral privilege against fraud. 
The principal evils of the old system were: lack of secrecy 
in voting; the use of separate ballots printed by the candi¬ 
dates or their party organizations; the distribution of these 
ballots before election day; lack of means for identifying 
the voters; the practice of allowing party workers to con¬ 
gregate about the polling places and aid the voters in the 
preparation of their ballots; bribery, intimidation, treating, 
and the use of other objectionable means for influencing 
voters; ‘Repeating”; ballot box “stuffing”; and the like. 
To eliminate or diminish these and other evils, practically 
all the states have passed laws of one kind or another. 
Much of this legislation is detailed and complex, and some 
of it is still in the experimental stage. 

The corrupt use of money in elections has come to be 
one of the greatest political evils of our time. The buying 
of votes is a very common practice in some communities, 
and unfortunately is not as strongly condemned by pub¬ 
lic opinion as it should be. Some 50 per cent of the 
voters in one county of Ohio were disfranchised by the court 
for selling their votes in the general election of 1910. The 
growth of great corporations, many of which desire legisla¬ 
tion in their interest, or immunity from unfavorable laws, 


LEGISLATION AGAINST FRAUDULENT VOTING 


141 

has introduced a more or less corrupting element in our 
political life. Some states have enacted laws forbidding 
corporations, under heavy penalties, from making contribu¬ 
tions to the campaign funds of political parties. Others 
have forbidden the practice of political committees of as¬ 
sessing office holders for campaign purposes. Some have 
gone to the length of forbidding “treating” and other simi¬ 
lar means of influencing voters. Some limit the arnount of 
money that may be spent by a candidate or his friends in the 
conduct of his campaign, usually specifying the purposes for 
which expenditures may be made. Thus the Connecticut 
and New York laws allow expenditures only for such mat¬ 
ters as the rent of halls, compensation of speakers and musi¬ 
cians, fireworks, printing, lithographs, advertisements, trav¬ 
eling expenses, postage, telegrams, hiring of carriages to take 
voters to the polls, and the like. A few, however, prohibit 
the hiring of carriages, and some forbid the giving away of 
liquor at elections. Some states require candidates to make 
sworn itemized statements of the expenditures incurred 
by them on account of the election, and some fix the maxi¬ 
mum amount that may be expended. Thus in New York a 
candidate for governor may expend only $10,000 on account 
of his candidacy; candidates for other state officers are 
permitted to spend $6,000. The need of limitations was 
illustrated by the fact that the Democratic candidate for 
governor of New York in 1906 spent over $256,000 in the 
prosecution of his candidacy, and a candidate for state 
senator spent $30,000 to secure an election.^ A recent 
candidate for the United States senate in a Western state 
admitted that his aggregate expenses were $107,000, and 
another testified that he spent $115,000 in the effort to 
secure an election. 

1 Fuller, “Government by the People,’’ p. 150. 


142 


SUFFRAGE AND ELECTIONS 


State Contributions to Party Campaign Funds .—In the 
belief that the state ought to bear a part of the candidate’s 
expenses, to the end that the poor office seeker may be more 
nearly on an equal footing with the candidate of means, 
Colorado recently passed a law providing that the state 
should contribute to the campaign fund of each political 
party a sum of money equal in amount to twenty-five cents 
for every vote cast by the party for governor at the preced¬ 
ing election. The law allowed the candidates themselves 
to spend their own money to aid in their election, but pro¬ 
hibited other persons or corporations from making contribu¬ 
tions. In short, the expense was to be borne by the state 
and the candidate alone. This Colorado law, however, was 
declared unconstitutional by the state courts. 

Other Restrictions .—In some states also the expenditures 
of party committees are limited, and such committees are 
required to make sworn statements of their expenditures 
and the purposes for which they were made. Several states 
prohibit the payment by other persons of a voter’s poll 
tax where the payment of such a tax is a condition to the 
voting privilege. 

Everywhere there are laws against bribery, intimida¬ 
tion, fraudulent voting, and most of the other election 
offenses. More and more, public sentiment demands that 
elections shall be free from the taint of corruption, to the 
end that the results shall represent the real choice of the 
people and thus popular government made to be what its 
founders intended that it should be. 

References.— Beard, American Government and Politics, pp. 453- 
457; also ch. xxiii. Fuller, Government by the People, chs. ii-vi, 
viii-xi. Garner, Introduction to Political Science, ch. xv. Hart, 
Actual Government, ch. iv. 

Documentary and Illustrative Material.—i. Legislative manual or 


REFERENCES 


143 

blue book of the state. 2. The election laws of the state. 3. Copy of 
instructions to voters. 4. Specimen ballots. 

Research Questions 

1. What are the qualifications for voting in your state? 

2. Are women allowed to vote in your state? If so, is the right 
limited to particular elections? 

3. Are there any offices in your state held by women? 

4. How many voters are there in your state? 

5. Is there a registration requirement? 

6. Do you think the right to vote should be restricted to persons 
who are able to read and write? 

7. Give the date on which state elections are held in your state; 
city elections; judicial elections. Why should national, state, and 
city elections be held on different dates? 

8. Name some offices in your state now filled by popular election 
which in your opinion should be filled by appointment. 

9. Who are the election officers in your county? 

10. What is the usual location of the polling place in your ward or 
precinct? 

11. Explain the difference between a “party column” and an 
“office column” ballot. Which type of ballot is used in your state? 
In case the former is used does it contain a party circle and a party 
symbol at the head of each column? 

12. Procure a specimen ballot used at the last election and ex¬ 
plain how to mark and cast it. 

13. Are voting machines used in your state? If so, where? 

14. Is there a law in your state against the improper use of money 
in elections? Does it specify the purposes for which campaign ex¬ 
penditures may be made? Are candidates required to make sworn 
statements of their election expenses? Are there any limitations on 
the amount a candidate is allowed to spend? 

15. Do you think corporations should be prohibited from making 
contributions to the campaign funds of political parties? 


CHAPTER VIII 


POLITICAL PARTIES AND NOMINATING METHODS 

Nature and Functions of Political Parties.—Political par¬ 
ties are organized by groups of voters for the purpose of pro¬ 
moting the success of the policies in which they believe, and 
in order to secure the nomination and election of public 
officials who are in sympathy with those policies. Men dif¬ 
fer in their opinions on matters of government as they do on 
matters of religion, and hence they come to constitute well 
differentiated groups. Whenever such a group becomes 
large enough to prosecute a concerted policy and organizes 
itself for the purpose of furthering its views in governmental 
matters, it becomes a political party. A political party is, 
therefore, composed of voters who hold substantially the 
same opinions in regard to certain public questions or 
certain principles of government. It is a purely vol¬ 
untary organization, however, and any voter may decline 
to. ally himself with any party, or, having done so, may 
change to another party whenever he wishes, or he 
may unite with others of a like mind and form a new 
party. While men can probably further the cause of good 
government best by means of organization and concert of 
action, no citizen should think more of his party than he 
does of his country, and whenever the purposes of a political 
party are prostituted for other ends than the public good 
no voter should feel morally bound to continue his support 
of such a party. 


144 


NATURE AND FUNCTIONS OF POLITICAL PARTIES 145 

National Parties .—Under a system of popular government 
where public policies are determined by the people and 
public officials are chosen by popular election, political 
parties are inevitable if not essential. Almost from the 
beginning, therefore, we have had political parties in this 
country, each believing in certain policies and each endeav¬ 
oring to gain control of the government in order to carry 
out those policies. For the promotion of policies that are 
national in character, such as those relating to the tariff, 
the currency, or the foreign policy of the country, national 
parties have been formed with organizations extending 
throughout the entire country. 

Local Parties .—For the most part the organization of 
the national parties extends downward through the states 
and their local subdivisions, and are made use of in local 
as well as in national elections. As the issues which divide 
the people in national elections, however, are not always 
the same as those which divide them in state and local elec¬ 
tions, we sometimes have a realignment of parties in local 
contests, and sometimes new parties of a local character 
are organized. This, in fact, is to be desired for the reason 
that issues of a local character ought not to be determined 
with reference to the views of men on issues of a national 
character. It is wrong, for example, for Democrats and 
Republicans who agree upon the issues involved in a munic¬ 
ipal election to oppose each other in such a contest merely 
because they do not agree on the expediency of a protective 
tariff or of a gold standard in money matters. In purely 
local elections national party lines should cut no figure; 
local issues should be judged wholly on their merits without 
reference to national questions. 

Existing Political Parties in the United States.—At the 
present time there are two great political parties in the 
Govt. U. S.—10 


146 POLITICAL PARTIES AND NOMINATING METHODS 

United States, the Democratic party and the Republican 
party, each with an organization extending to every part 
of the country, and together including the great majority 
of the voters. 

The Democratic Party .—In a general way, we may say 
that the Democratic party is composed of men who believe 
that the sphere of the national government should not be 
extended beyond what a strict interpretation of the Federal 
Constitution warrants; that the rights of the states should 
be interfered with as little as possible; and that the ac¬ 
tivities of government, whether national, state, or local, 
should be kept down to a minimum so that the individual 
shall be allowed the largest measure of freedom consistent 
with the maintenance of order, peace, and security. This 
party has uniformly opposed a protective tariff, ship sub¬ 
sidies, imperialism, and the extension of the powers of the 
national government through ‘‘constructions” of the Con¬ 
stitution. On the money question the party has not always 
been united, though for the most part it has opposed the 
single gold standard and favored a bimetallic standard 
coupled with the free coinage of silver as well as of gold. 

The Republican Party has contended for a liberal inter¬ 
pretation of the Federal Constitution, especially those 
parts relating to the powers of the national government, 
which it desires to see extended; it has shown less sympathy 
than the Democratic party for the rights of the states; it 
is the champion of the protective tariff, of internal improve¬ 
ments under federal auspices, of colonial expansion, liberal 
pensions for soldiers and sailors of the Civil War, of sub¬ 
ventions for the merchant marine, negro suffrage, and of 
a gold monetary standard. Since the accession of the 
Republican party to power in i860 with the election of 
Abraham Lincoln as President, it has controlled the execu- 


EXISTING POLITICAL PARTIES 


147 

live department of the national government continually 
with the exception of eight years when Grover Cleveland 
was President (1885-1889; 1893-1897). Most of the time 
since i860, it has controlled Congress, though several times 
the Democratic party has had a majority in one or the 
other house and occasionally for a short time it has been 
in the majority in both houses. 

Some state governments are controlled by one party, 
and some by the other. Since 1875 the Democratic party 
has usually been in power in nearly all of the Southern 
states, and the Republican party in more than half of the 
other states; but in some states control often shifts from 
one party to the other. 

The Prohibition Party ,—Besides the Democratic and 
Republican parties, there are several minor parties with 
organizations of a national character. The oldest of these 
is the Prohibition party, organized in 1872 to promote the 
movement for the abolition of the manufacture and sale of 
intoxicating liquors. Since its organization, it has regularly 
nominated candidates for President and Vice President of 
the United States, and in many states it nominates candi¬ 
dates for state offices and for the legislature. Not infre¬ 
quently it has succeeded in electing some of its candidates 
to the legislature, and it has been instrumental in securing 
the enactment of local option laws and even state-wide 
prohibition laws in several states. 

The Socialist Labor Party, organized in 1892, advocates 
government ownership of land, railways, telegraph lines, and 
other means of production, transportation, and distribution. 
The Socialist Party, organized in 1904 mainly from the 
Socialist Labor party, advocates essentially the same views. 
At the elections of 1910 it cast 730,000 votes throughout 
the country and elected one member of Congress. 


148 POLITICAL PARTIES AND NOMINATING METHODS 

The People’s Party, sometimes known as the Populist 
party, was organized in 1892 and is composed largely of 
farmers who favor the free coinage of silver, an increase 
of the amount of money in circulation, the prohibition of 
national banks from issuing notes, the establishment of 
postal savings banks and a parcels post system, wider ex¬ 
tension of the initiative and the referendum, and govern¬ 
ment ownership of railroads, telegraphs, and telephones. 
For several years after the organization of this party it 
had a large number of followers and succeeded in controlling 
several states and sending a number of representatives and 
senators to Congress. Since 1896, however, it has declined, 
and at the presidential election of 1908 it cast only a small 
vote for its candidate for President. 

Party Organization.—Political parties, like other asso¬ 
ciations which have ends to promote, must have organiza¬ 
tion. For the conduct of national campaigns, each of the 
parties has a national organization; for state purposes there 
is a state organization; and usually there are a county and 
a district organization. The characteristic feature of party 
organization is the use which is made of committees. The 
organization everywhere consists of a committee, at the head 
of which is a chairman, and which has also a treasurer and 
usually a secretary. The chairman is usually an experienced 
political leader; sometimes he is at the same time an office 
holder. Thus the chairman of the national committee is 
frequently a United States senator; the chairman of the 
Republican state committee in New York several years 
ago was the governor of the state. 

The Convention .—The policies of the party are formulated 
by a convention which is a representative gathering com¬ 
posed of delegates chosen directly by the members of the 
party or by local conventions. The national convention. 


PARTY ORGANIZATION 


149 

to be described hereafter, is composed of a certain number 
of delegates from each state, while the state convention is 
composed of delegates chosen from the counties, the legis¬ 
lative districts, or other units. The county convention is 
composed of delegates from the districts into which the 
county is divided, and the city convention of delegates 
from the wards or precincts. This is the usual rule, but 
here and there are variations. The state convention formu¬ 
lates the principles of the party and sets them forth in a 
document called the platform; it nominates the candidates 
of the party, except in those states where they are nomi¬ 
nated by. a direct primary; and it appoints the central 
committee, selects the chairman, and transacts such other 
business as may come before it. It is, in short, the supreme 
sovereign authority of the party in the state. It is usually 
a large body, sometimes comprising 1,000 or more dele¬ 
gates, and in Massachusetts as many as 2,000. 

Committees .—The committee is a select body for carrying 
on the campaign and attending to such other matters as 
njay be intrusted to it. The national committee is com¬ 
posed of one member from each state; the state committee, 
usually of delegates from the counties or legislative dis¬ 
tricts. The New York Republican state committee is 
composed of one delegate from each congressional district 
in the state, while the Democratic committee consists of 
one delegate from each of the fifty-one senatorial districts 
of the state. Similarly, the county committee is made up 
of delegates representing the political units into which the 
county is divided, towns, precincts, etc. Sometimes the 
county committee is a very large and representative 
body. The Republican committee of New York county is 
made up of about 700 delegates, each delegate represent¬ 
ing 200 Republican voters in the county. 


150 POLITICAL PARTIES AND NOMINATING METHODS 

In the.cities, there is not only the general city committee, 
but also a local committee for each ward or precinct. These 
ward committees come into close relation with the voters, 
and the success of the party depends to a large degree upon 
their activity. 

Primaries.—As soon as political parties were definitely 
formed it became necessary to devise some sort of machinery 
for selecting the candidates which the party desired to put 
forward. In the beginning candidates for local offices were 
presented to the voters upon their own announcement or 
by a caucus (an informal meeting of the leading men of 
the party) or a primary (a mass meeting of the members 
of the party). In time the caucus, except as a means of 
selecting candidates for offices in legislative bodies, fell 
into disrepute, and the method of nomination by a conven¬ 
tion composed of delegates representing the party became 
the accepted method. The delegates are chosen by the 
members of the party at an election called a primary, so 
called because it is the first or original meeting of the party 
voters in the process of choosing public officials. 

Former Lack of State Control .—The calling of the primary, 
the manner of conducting it, and the fixing of the party 
test, that is, the determination of who may take part in 
the primary, are matters which for a long time were regu¬ 
lated by each party according to its own notions, without 
interference upon the part of the state. In short, it was 
assumed that the state had no interest in the manner in 
which political parties nominated their candidates, and it 
therefore kept its hands off. The control of the primaries, 
particularly in the more populous centers, fell into the 
hands of a small number of political leaders, or ‘‘bosses,” 
who virtually dictated the nominations. Sometimes the 
primaries were held at times or places unknown to the bulk 


PRIMARIES 


151 

of the members of the party, or at inaccessible places, or in 
rooms inadequate to accommodate the mass of the voters. 
They were sometimes packed with henchmen of certain 
candidates; sometimes large numbers of the voters were 
kept away by “sluggers” or were intimidated by domineer¬ 
ing leaders; sometimes the qualifications for participating in 
the primary were fixed in such a manner as to exclude the 
great mass of the voters. Men of different parties were 
sometimes brought in to aid in effecting the nomination 
of particular candidates, ballot boxes were “stuffed” or 
other frauds committed, and often the votes were fraudu¬ 
lently counted. In short, the abuses became so intolerable 
as to create a widespread demand for the regulation of 
primaries by law so that the results might more truly rep¬ 
resent the real opinions of the members of the party. 

State Regulation of Primaries. —Accordingly, one state 
after another began to pass laws regulating the holding of 
primaries, on the ground that the state was as much in¬ 
terested in the nomination of candidates as it was in the 
election of those nominated, for it was obvious that unless 
nominations were fairly made and unless the candidates 
selected realty represented the free choice of the people, 
popular government would be at an end, since in many 
communities a nomination was equivalent to an election. 
At first, the laws enacted by the states for the regulation 
of primary elections were simple, and were designed to 
prevent only a few of the worst abuses that had grown 
up. They usually applied only to the large cities, and in 
many cases they were optional in character, that is, they 
applied only to such communities as chose to conduct their 
primaries in accordance with the laws thus passed. Be¬ 
ginning about 1890, however, the legislatures here and 
there began to enact state-wide primary laws which were 


152 POLITICAL PARTIES AND NOMINATING METHODS 

mandatory upon all localities and all parties, and applied 
to nominations for the great bulk of the offices filled by 
popular election. 

Existing Primary Laws.—^At the present time every state 
has a law regulating in some way the holding of primary 
elections. In general, these laws apply to every organized 
pohtical party that cast at least a certain number of votes 
at the preceding election; and they provide that the pri¬ 
maries of all such parties shall be held on the same day (in 
some states at the same polling places, and by the same 
officials that hold the regular elections), and in accordance 
with the rules and safeguards governing the regular elec¬ 
tions. They fix the date on which the primaries shall be 
held and require that due notice shall be given thereof; 
they prescribe the manner of nominating delegates (and 
such candidates for public office as are chosen directly by 
the primaries); they provide for the use of official ballots 
printed at pubHc expense; they contain provisions in re¬ 
gard to the organization and powers of the party commit¬ 
tees, and in general they regulate everything relating to the 
conduct of the primaries that would be a subject of regu¬ 
lation if they were regular elections. 

The Party Test .—One of the most difficult problems in 
the enactment of legislation concerning the primary elec¬ 
tion is how to prescribe fairly the qualifications that must 
be possessed by those who shall be allowed to participate 
in the primary. It is often embarrassing and disagreeable 
for a voter when he appears at the polls to cast his vote to 
be compelled to reveal his party affiliation, yet unless he is 
required to do so, the adherents of one party might easily 
participate in the primary of another with a view to bringing 
about the nomination of its weakest candidates. Thus in 
a Western city some years ago where the primary law did 


EXISTING PRIMARY LAWS 


153 

not require a declaration of party affiliation, a large number 
of the members of one party entered the primary of the 
opposite party and brought about the nomination of their 
weakest candidate for mayor, and thus at the regular elec¬ 
tion the party to which the ‘‘invaders” belonged was 
easily able to defeat him with its own candidate. Most 
primary laws, therefore, insist upon a statement by the 
voter of his party affiliation as a condition to participation 
in the primary. Usually the test of membership is that 
the voter must have affiliated with the party at the last 
election, and sometimes he must pledge himself to support 
at the coming election the candidates nominated at the 
primary of the party in which he participates. 

As a primary is an election by the members of a political 
party, independents, or those who are not adherents of 
any party, are not allowed to participate in the primary. 
This is sometimes made a subject of complaint on the ground 
that it discourages reform movements by independent 
voters, but there seems to be no way to remedy the matter. 
Sometimes an exception is made in the primaries for the 
nomination of candidates for city offices, on the ground 
that party lines should not be strictly drawn in local con¬ 
tests and that independent movements should be en¬ 
couraged. 

Nominations by Conventions.—Before the introduction 
of the method of nominating candidates by the direct 
primary, to be described hereafter, the universal method 
of nomination was by convention, and this is the prevailing 
method now in the majority of states. 

Preliminary Organization of a Convention .—The conven¬ 
tion, as previously stated, is composed of delegates chosen 
at a primary election. The date and place of holding the 
convention are announced by the party committee some 


154 POLITICAL PARTIES AND NOMINATING METHODS 

weeks in advance. It is called to order by the chairman of 
the committee, after which a temporary chairman of the 
convention is elected, and not infrequently a spirited contest 
takes place over the election, especially when there is likely 
to be a struggle for the nomination of the principal officers 
which the convention has been called to nominate. The 
temporary chairman, upon taking the chair, usually de¬ 
livers an address in which he extols the party for its achieve¬ 
ments in the past, after which usually four committees 
are appointed: one on organization, one on rules, one on 
resolutions^ and one on credentials. 

Convention Committees .—Frequently rival delegations ap¬ 
pear from some county or district, and the convention must 
decide which one is entitled to seats. Questions of this 
kind are referred to the committee on credentials, which, 
after hearing both sides, reports to the convention recom¬ 
mending which delegation shall be seated, and the recom¬ 
mendation of the committee usually, though not always, 
is approved. Sometimes, however, both contesting dele¬ 
gations are seated, each delegate being allowed half a vote. 

The committee on rules frames the rules of procedure 
by which the business of the convention is to be transacted; 
its report is usually adopted without alteration. 

The committee on permanent organization proposes the 
names of candidates for permanent chairman, secretary, 
and such other officers of the convention as may be needed. 
The officers suggested by this committee are usually elected, 
though sometimes the convention elects a different ticket. 

The chairman of the committee on resolutions presents 
a draft of the platform, which is adopted by the convention, 
usually, though not always, without change. 

The Nominations .—The convention is now ready for the 
chief business for which it was called, namely, the nomina- 


NOMINATIONS BY CONVENTIONS 


155 

tion of candidates which the party desires to put forward 
for the offices to be filled at the coming election. The names 
of the candidates are usually presented to the convention 
in highly eulogistic speeches, and the nominations are gener¬ 
ally seconded by one or more delegates. The balloting then 
proceeds until the nominations are all made. Sometimes 
where more than two candidates are placed in nomination 
no one of them is able to secure a majority, and a “deadlock” 
ensues, lasting maybe for days or even weeks, and ter¬ 
minated by the nomination of a “dark horse.” 

Objections to the Convention Method .—When deadlocks 
occur, the “dark horse” chosen is likely to be an inferior 
candidate. Another objection to the method of nomination 
by convention is that the nominations are frequently deter¬ 
mined by a small number of leaders or “bosses” who control 
the convention, and thus the nominations do not represent 
the choice of the party. How a convention may be thus 
controlled by a few politicians is thus stated by a careful 
writer who is fully conversant with party methods: ^ 

“The program of the convention, in practice, is almost always de¬ 
cided upon down to the minutest detail, before the convention meets. 
The party leader, or ‘ boss,’ and his lieutenants discuss the relative 
claims of candidates and decide who shall be nominated. The party 
platform is written and submitted to the ‘boss’ for his approval. The 
officers of the convention are agreed upon and their speeches revised. 
All this is outside the law, which ignores the existence of the party 
leader and assumes that the delegates are free to exercise their own 
judgment. The real interest in the convention is usually centered 
in the secret conferences of the leaders which precede it and in which 
the contests over the nominations are fought out, sometimes with 
much stubbornness. The ‘slate’ is finally made up by agreement 
between leaders who control a majority of the delegates in the con¬ 
vention. The leaders of the minority may either surrender or they 

1 Fuller, “Government by the People,” pp. 61-63. 


156 POLITICAL PARTIES AND NOMINATING METHODS 

may register their protest by presenting the names of other candidates 
in the convention with the certainty of defeat, for it is rare in state 
conventions that there is so equal a division of strength as to leave 
the result in doubt. 

“While the leaders are settling what the convention is to do, the 
delegates are left to their own devices, ignorant of what is going on 
in the ‘headquarters’ where the leaders are assembled. They are 
not consulted and their advice is not asked. It often happens that 
they do not know whom they are to nominate until they hear for the 
first time in the convention hall the names of the candidates agreed 
upon by the leaders. Although the law gives them the right to bring 
forward the names of other candidates, they seldom exercise it, and 
the delegate bold enough to disobey orders is regarded with disap¬ 
proval.” 

Nomination by the People: the Direct Primary. —About 
1889, because of growing dissatisfaction with the convention 
system, some of the states began to experiment with the 
method of popular nomination, that is, direct nomination 
by the primary instead of by convention. Instead of calling 
on the voters to choose delegates to a convention to which 
the task of nomination was intrusted, they were now called 
upon to vote directly for the candidates themselves. It 
was said that if the voters were competent to choose dele¬ 
gates to a convention they were equally competent to 
select the candidates themselves. The movement for the 
direct primary, as it was called, spread rapidly particu¬ 
larly in the South and West. Thus the convention has 
been done away with in a large number of states except 
where it is still retained to frame platforms, appoint the 
central committee, and select delegates to the national 
convention, and in some states it has been abolished even 
for these purposes, other means having been provided for 
taking care of these matters. 

Objections .—The direct primary has been criticized be¬ 
cause under it candidates for state offices need to canvass 


NOMINATIONS BY CONVENTIONS 


157 

the entire state in order to become acquainted with the 
voters—a task which requires much time and is very ex¬ 
pensive. Such a system, it is argued, gives the candidate 
of leisure and wealth a decided advantage over the poor 
man who cannot afford the large expense involved. 

The direct primary method, however, has given general 
satisfaction where it has been adopted. 

Nomination by Petition.—While most candidates for pub¬ 
lic office are nominated by the recognized political par¬ 
ties, the laws of many states allow candidates to be nom¬ 
inated also by petition of independent voters. The pro¬ 
cedure of nomination by petition is for the candidate or his 
friends to prepare a nomination paper or petition contain¬ 
ing the title of the office to be filled, together with the name 
and residence of the candidate, get a certain number of 
voters to sign it, and then file it with the proper election 
officer. The number of signatures necessary to nominate 
varies according to the nature of the office to be filled and 
the population of the district or territory over which the 
jurisdiction of the office extends. Thus in New York a 
petition for the nomination of a candidate for a state office 
must contain the signatures of at least 6,000 legal voters 
(including at least 50 from each county), while in Massa¬ 
chusetts 1,000 is sufficient. For the nomination of can¬ 
didates for local offices the number of petitioners required 
is smaller. Thus in New York candidates for the legis¬ 
lature may be nominated by 500 voters; in Massachusetts 
candidates for local offices may be nominated by petitions 
signed by one per cent of the number of voters. 

References.— Beard, American Government and Politics, chs. vii, 
XXX. Bryce, The American Commonwealth (abridged edition), 
ch. xlv. Fuller, Government by the People, chs. iv, v, xi. Hart, 
Actual Government, ch, v. Merriam, Primary Elections, chs. i, v. 


158 POLITICAL PARTIES AND NOMINATING METHODS 

Documentary and Illustrative Material.—i. Legislative manual or 
blue book of the state. 2. Copy of the primary election law of 
the state. 3. Democratic and Republican campaign textbooks. 

4. Copies of party platforms. 5. Specimen ballots. 6. Copies of dele¬ 
gates’ credentials, nomination certificates, petitions, etc. 

Research Questions 

1. Do you consider political parties essential under a system of 
popular government? Would it be better if there were in each state 
of the Union at least two strong political parties instead of one, as is 
virtually the case in some of the Southern states as well as in some of 
the North? 

2. Do you think every voter ought to join some political party and 
support its candidates and policies? Suppose he does not approve 
the candidates which it has nominated and the policies which it has 
adopted, what should he do? Ought independent voting to be en¬ 
couraged? If so, why? 

3. How many votes were cast by the Democratic party in your 
state for governor at the last election? How many by the Republican 
party? 

4. How is the state central committee of each party constituted in 
your state? Who are the members from your county or district? 

5. At what places were the last state conventions of the Demo¬ 
cratic and Republican parties held in your state? How many dele¬ 
gates were there in each? 

6. How are municipal officers nominated in your state? 

7. Is there a primary law in your state? If so, what are its provi¬ 
sions? 

8. Has the method of nomination by direct primary been intro¬ 
duced into your state? If so, to wfiat offices does it apply? How are 
members of party committees selected? What test does the primary 
law of your state provide for participation in the primary? Does it 
permit the people to express their choice for United States senator? 
In what order are candidates arranged on the primary ballot? Did 
a large proportion of the voters take part in the last primary election? 
What is the date fixed for holding the primary? 

9. Are any officers nominated in your state by conventions? 

10. If candidates are nominated by a direct primary in your state, 
what is the method devised for preparing the platform of the party? 


CHAPTER IX 


THE ESTABLISHMENT OF THE UNION 

The Articles of Confederation.—The Continental Con¬ 
gress, which managed the common affairs of the Union 
during the early stages of the Revolution, was a body whose 
authority was not defined by any constitution or funda¬ 
mental law. It assumed large powers in the belief that the 
people, relying upon its patriotism and wisdom, would 
acquiesce in its doings. As yet, however, the states were 
not closely united and each was free to go itjs own way. 
As time passed, the advantages of union became more 
manifest, and the states began to recognize the desirability 
of creating a common government with larger powers and 
with definite authority. After a debate lasting off and on 
for more than a year. Congress adopted in November, 1777, 
an instrument called the Articles of Confederation, which 
was to go into effect when ratified by all the states. 

Ratification of the Articles .—During the years 1778 and 
1779, all the states except Maryland ratified the Articles. 
Maryland withheld her approval because she doubted the 
advantage of a union among states, some of which held 
vast territory in the West while some did not. The states 
claiming lands northwest of the Ohio River were Virginia, 
New York, Massachusetts, and Connecticut. As these 
lands had been wrested from Great Britain while that 
power was weakened by her war with all the states, Mary- 

159 


i6o THE ESTABLISHMENT OF THE UNION 

land insisted, as a condition to her adhesion, that the states 
claiming these lands should surrender them to the nation 
for the benefit of all the states. This argument appealed 
to the sense of patriotism and justice of the states claiming 
this northwestern territory, and in the course of the next 
few years they ceded most of their lands to the United 
States for the common benefit. When it became certain 
that this would be done, Maryland ratified the Articles, and 
the Confederation of the states was completed. 

Government under the Articles.—The Confederation 
thus formed was styled a “firm league of friendship” under 
the name of “the United States of America,” and its de¬ 
clared purpose was to provide for the comm.on defense of 
the states, the security of their liberties, and their mutual 
and general welfare. To secure these ends the states bound 
themselves to assist each other against all attacks upon 
either or all of them, upon any pretense whatever. 

For the management of certain affairs common to the 
states composing the Confederation, the Articles provided 
for an annual Congress of delegates to be chosen by the 
states, no state to be represented by less than two members 
or more than seven. Unlike the Continental Congress, 
the Congress of the Confederation was given express power 
to deal with certain affairs, and therefore it did not have 
to assume the powers it exercised. Among these were the 
power to declare war and make peace; to send and receive 
diplomatic representatives; to enter into treaties; to make 
rules regarding captures on the high seas; to grant letters 
of marque and reprisal; to settle disputes between the 
states, upon petition of the disputants; to regulate the 
alloy and value of coin, whether struck under the authority 
of Congress or by the states; to fix the standard of weights 
and measures throughout the United States; to regulate 


GOVERNMENT UNDER THE ARTICLES i6i 

trade and intercourse with the Indians; to make rules for 
the government of the land and naval forces; to estab¬ 
lish post offices; and a few other powers of a like char¬ 
acter. 

No provision, however, was made for an executive de¬ 
partment or for a national judiciary, with the single excep¬ 
tion of a court of appeal in cases involving captures on the 
high seas in time of war. 

Prohibitions on the States .—In the interest of the general 
peace and security, the states were forbidden, except with 
the consent of Congress, to send diplomatic representatives 
to foreign countries, or enter into treaties or alliances, or 
levy any duties on articles imported from abroad, if such 
duties should conflict with the provisions of foreign treaties; 
or keep ships of war in times of peace; or engage in war; 
or grant letters of marque and reprisal. 

Defects of the Articles of Confederation.—Although the 
Articles of Confederation proved of great value in securing 
concert of action among the states in certain matters, the 
weaknesses of the union which they created and the defects 
of the governmental machinery provided by them soon 
proved serious. 

The States Retained too Much Power .—The union turned 
out to be the loosest sort of a league, in which the states 
for the most part did as they pleased. Each retained its 
own sovereignty and could not be compelled to perform 
its obligations as a member of the Confederation. Some 
of them deliberately violated the treaty of peace with 
Great Britain, and the Congress was unable to prevent 
such infractions. Congress being thus powerless to carry 
out the stipulations of the treaty. Great Britain refused to 
perform her obligations thereunder. Since no executive 
department and no courts were created to enforce and ap- 
Govt. U. S.—II 


162 THE ESTABLISHMENT OF THE UNION 

ply the laws passed by Congress, the nation had to depend 
upon the states to carry out its will. 

The Congress was not well Organized .—In the organiza¬ 
tion and procedure of Congress there were serious defects. 
No member could serve for more than three years in six, 
and each state paid its own members and might recall 
them at pleasure. Thus the dependence of the represen¬ 
tative upon his state was emphasized and his character 
as a national representative minimized. Worse than this 
was the provision that allowed each state, regardless of 
its population and size, but one vote in Congress. Thus 
Georgia with a population of only a few thousand souls 
enjoyed the same power in all matters of national legislation 
that Virginia did, although the population of Virginia was 
some sixteen times as great. Still another serious weakness 
was the rule which required the assent of nine states to 
pass any important bill, such as those for borrowing or 
appropriating money, issuing bills of credit, declaring war, 
entering into treaties, coining money, building war ships, 
raising military forces, selecting commanders, and the like. 
As it was frequently impossible to secure the concur¬ 
rence of so large a proportion of the states, needed legis¬ 
lation was often prevented by the opposition of a few mem¬ 
bers or by the lack of a quorum. Thus in April, 1783, there 
were present only twenty-five members from eleven states, 
nine being represented by only two members each. It 
would have been possible, therefore, for three members to 
defeat any important measure.^ 

Congress had No Power of Taxation .—Not only were the 
defects in the organization and procedure of Congress of a 
serious character, but the powers conferred upon it by 
the Articles of Confederation were so meager that its au- 
^ Andrews, “Manual of the Constitution,” p. 38. 


DEFECTS OF THE ARTICLES ’ 163 

thority was little more than a shadow and carried little 
weight. One of the essential powers of government is that 
of taxation, yet the Congress had no authority to impose 
a dollar of taxes on any individual in the land. Money 
was needed to pay the soldiers who were fighting the battles 
of the country, to pay the salaries and expenses of diplo¬ 
matic representatives who had been sent to Europe to 
negotiate treaties and solicit the aid of foreign friends, to 
pay interest on loans incurred in France and Holland, to 
defray the cost of building war ships and equipping the 
army, and to meet the various other expenses which every 
government must needs incur, yet the government of the 
Confederation was powerless to raise the necessary funds 
by taxation. In the absence of all power to levy and collect 
taxes. Congress adopted the policy of apportioning the 
national expenses among the states, fixed the quota of each. 
But no state could be compelled to contribute a dollar; some 
of them in fact contributed little, and most of those which 
did respond to the appeal of Congress did so grudgingly 
and tardily. Of the $15,000,000 apportioned among the 
states between 1781 and 1786 less than $2,000,000 was 
actually paid in. Often there was not a dollar in the treasury 
of the Confederation to pay the obligations of the govern¬ 
ment. 

Two attempts were made to amend the Articles of Con¬ 
federation so as to give Congress power to levy a five per 
cent tariff duty on imported goods, but since it required the 
assent of each of the thirteen states to adopt an amendment, 
the scheme fell through, in both cases on account of the 
opposition of a single state. 

Congress had No Power to Regulate Commerce, either with 
foreign countries or among the states themselves. This 
was a serious defect. Each state had its own tariff sys- 


1 64 THE ESTABLISHMENT OF THE UNION 

tern and its own customhouses, and collected its own 
duties on goods brought into its ports from abroad. As 
each state was anxious to exploit this source of revenue for 
itself, it naturally framed its tariff regulations and tonnage 
laws in such a way as to attract foreign commerce to its 
own ports. And so it was with regard to commerce among 
the states themselves. Each framed its trade regulations 
with its neighbors according to its own selfish notions and 
without regard to the general good. The result was con¬ 
tinual jealousies, dissensions, and sometimes reprisals and 
retaliations. New York levied an import duty on certain 
articles brought in from its less fortunate neighbors, Con¬ 
necticut and New Jersey, and each in turn retaliated as 
best it could. For purposes of foreign and interstate com¬ 
merce, each state was a nation itself, and the Confederation 
was a nonentity. 

The Annapolis Convention.—The worst evils described 
above reached a climax in 1786, and the political leaders of 
America such as Hamilton and Washington were convinced 
that the government of the Confederation must either be 
revised or superseded entirely by a new system. In Sep¬ 
tember, 1786, there assembled at Annapolis, Maryland, a 
convention of delegates from five states, namely, New York, 
New Jersey, Pennsylvania, Delaware, and Virginia, called 
at the instance of the legislature of Virginia to take into 
consideration the subject of uniform trade regulation among 
the states, the lack of which had come to be one of the chief 
evils of the Confederation. So few states were represented 
that the convention decided not to enter upon the business 
for which it had been called, but instead determined to put 
forth an effort to bring about the assembling of a convention 
representing all the states and empowered to take into 
consideration the question of a general revision of the Arti- 


THE ANNAPOLIS CONVENTION 


165 

cles of Confederation so as to render them more adequate 
to the needs of the nation. Accordingly, a resolution pre¬ 
pared by Alexander Hamilton, one of the delegates from 
New York, was adopted, calling on the states to appoint 
delegates to a convention to be held at Philadelphia on the 
second Monday in May next, for the purpose of revising 
the Articles of Confederation. 

The Constitutional Convention of 1787; Personnel.—In 
pursuance of this resolution, all the states except Rhode 
Island promptly appointed delegates, the failure of Rhode 
Island being due to her satisfaction with the Confederation, 
under which she enjoyed larger commercial advantages 
than she could hope to enjoy if the Articles were amended 
so as to take away from the states their control over com¬ 
merce. Altogether fifty-five members sat in the convention 
at one time or another, though only thirty-nine signed the 
Constitution. From Virginia came George Washington, 
Edmund Randolph, and James Madison; from Massa¬ 
chusetts, Rufus King and Elbridge Gerry; from Connecti¬ 
cut, William Samuel Johnson and Roger Sherman; from 
New Hampshire, John Langdon; from New York, Alex¬ 
ander Hamilton; from New Jersey, William Livingston and 
William Paterson; from Pennsylvania, Benjamin Frank¬ 
lin, Robert and Gouverneur Morris, Jared Ingersoll, and 
James Wilson; from Delaware, John Dickinson; and from 
South Carolina, John Rutledge, Charles Pinckney, and 
Charles Cotesworth Pinckney. Some of the delegates, as 
Benjamin Franklin, had been members of the Albany Con¬ 
gress as far back as 1754; some had been members of the 
Stamp Act Congress of 1765; most of them had served in the 
Continental or Confederation Congresses; and a number 
of them were signers of the Declaration of Independence. 
A great many of them had served in the legislatures of their 


l66 THE ESTABLISHAIENT OF THE UNION 

states, and of the whole number there was not one who had 
not had some legislative experience. 

The Work of the Convention of 1787.—When the con¬ 
vention had been duly organized, “plans” of a proposed 
constitution were submitted by the delegations of several 
states, and these became the bases of the discussion which 
followed. 

The Virginia Plan. —The plan submitted by the Virginia 
delegation represented the views of delegates from the 
larger and more populous states, and the Constitution as 
finally adopted embodied more largely the features of this 
plan than those of any other. The most important resolu¬ 
tion of this plan was that a national government ought to be 
established consisting of a supreme legislative, judiciary, 
and executive. This resolution, adopted in committee of 
the whole, went directly to the root of the chief evil of 
the existing system, which contained no provision for an 
executive or a judicial department. It recognized also what 
has come to be a fundamental doctrine of American poli¬ 
tical science, namely, the separation of the legislative, exe¬ 
cutive, and judicial functions. 

The New Jersey Plan. —The views of delegates from the 
small states were embodied in the New Jersey plan, which 
was laid before the convention by William Paterson. In 
general, the New Jersey plan provided for the retention of 
the principal features of the existing system, except that 
it proposed to enlarge the powers of Congress so as to make 
its authority more effective. This was all, in the judgment 
of the small states, that was necessary to remove the exist¬ 
ing evils. 

The Problem of Representation in Congress. —The conven¬ 
tion without much discussion decided that Congress should 
consist of two chambers or houses instead of one as was 


WORK OF THE CONVENTION OF 1787 167 

the case under the Articles of Confederation. This done, 
the next problem was to determine the basis of representa¬ 
tion in each. This proved to be one of the most difficult 
tasks of the convention. The delegates from the large 
states insisted that representation in both houses should be 
based on population, so that a state such as Virginia with 
sixteen times the population of Georgia should have sixteen 
times as many representatives in Congress. But to this 
system of proportional representation, the delegates from 
the small states objected. They maintained that the im¬ 
portance of a state was not to be measured by its popula¬ 
tion; that the states were sovereign political entities, and 
when it came to participation in the government of the na¬ 
tion they were all equal, large and small alike. There was 
no more reason, said a delegate from one of the small states, 
why a large state should have more representation in Con¬ 
gress than that a large man should have more votes than 
a small man. For a time the differences seemed irrecon¬ 
cilable, and more than once it looked as if the convention 
would be disrupted on this question. The spirit of com¬ 
promise triumphed, however, and it was finally agreed that 
the states should be represented equally in the senate but 
in proportion to their population in the house of repre¬ 
sentatives. As a result of this rule, Nevada to-day with 
a population of about 81,000 sends the same number of 
senators to Washington as does New* York with a popula¬ 
tion of some 9,000,000 souls. New York, on the other 
hand, sends thirty-seven representatives to Congress while 
Nevada sends but one. This was the first great compromise 
of the Constitution. 

The Question of Counting the Slaves.—Tht next problem, 
which was almost equally difficult and which likewise had 
to be settled by compromise, was the question of whether 


168 THE ESTABLISHMENT OF THE UNION 

the slaves should be counted in determining the population 
of the state for purposes of representation. The delegates 
from the Southern states argued that slaves were an im¬ 
portant factor in contributing to the wealth and power of 
the country and should, therefore, be counted for purposes 
of representation. To this argument the delegates from 
the Northern states, where the slave population was in¬ 
considerable, objected on the ground that the slaves at 
law were treated merely as property and were not allowed 
to vote in the states where they resided. The discussion 
over this question was long and at times exciting, but finally 
a compromise was reached by which it was agreed that in 
determining the population for purposes of representation, 
all the white population but only three fifths of the slaves 
should be counted. At the same time it was decided that 
direct taxes among the states should be apportioned on the 
same basis. This compromise was favorable to the slave 
states in that it gave them an increased number of rep¬ 
resentatives, but it was unfavorable in that it increased 
their proportion of direct taxes. This is known as the 
three-fifths compromise. 

Federal Regulation of Commerce .—Another question which 
became the subject of heated discussion related to the na¬ 
tional control of commerce. The Northern states wished 
Congress to be given the power to regulate commerce, 
but the Southern states, which at the time furnished the 
principal articles of exj 5 ort, feared that the power might be 
employed in such a manner as to injure their commerce, 
and might also be used to prohibit the slave trade and thus 
prevent the Southern planters from stocking their farms 
with laborers. They accordingly insisted that Congress 
should be expressly prohibited from interfering with the im¬ 
portation. of slaves, and that it should be allowed to pass nav- 


WORK OF THE CONVENTION OF 1787 169 

igation acts only by a two-thirds majority of both houses. 
The whole matter was finally settled by a compromise 
which forbade Congress to interfere with the importation 
of slaves before the year 1808, but which allowed it to pass 
laws by a majority vote for the regulation of commerce. 
This was the last great compromise of the Constitution. 

Other Compromises .—Many other questions were settled 
on the basis of compromise, though none of them occasioned 
so much discussion as the three mentioned above. Some 
have regretted that such compromises as that which allows 
the states equality of representation in the senate, as well as 
the one which allowed representation on the basis of the 
slave population, should have ever found their way into the 
Constitution; but it is certain that without these com¬ 
promises the Constitution could never have been adopted. 

After the settlement of the questions mentioned above, 
the work of framing the Constitution proceeded with less 
difficulty. Finally, on September 17, the completed draft 
was signed by thirty-nine delegates, after which the con¬ 
vention adjourned. A few were absent and did not sign 
for that reason; others, such as Gerry of Massachusetts and 
Mason of Virginia, disapproved of the Constitution and re¬ 
fused to attach their signatures. 

Ratification of the Constitution.— Before adjourning, the 
convention resolved to send the draft of the Constitution 
to Congress with the request that it should transmit the 
instrument to the legislatures of the several states and that 
these in turn should submit it to conventions for ratifica¬ 
tion. It was agreed, moreover, that when it should have 
been, ratified by conventions in nine states it should go into 
effect between the states so ratifying. 

Opposition to the Constitution .—As soon as the text of 
the Constitution was made known to the people of the 


170 


THE ESTABLISHMENT OF THE UNION 


states, a flood of criticism was turned loose on it from al¬ 
most every part of the country. Those who approved the 
Constitution and favored its ratification were called Feder¬ 
alists; those who opposed it were called Anti-Federalists. 
The principal grounds of opposition were that in providing 
for a national government with extensive powers the Con¬ 
stitution had sacrificed, to a large degree, the rights of the 
states; that such a government would prove dangerous to 
the liberties of the people; that the President for which 
the Constitution provided might become a dictator and a 
tyrant; that the senate would be an oligarchy; and that the 
Federal Constitution, unlike those of the states, contained 
no bill of rights for the protection of the people against gov¬ 
ernmental encroachment upon their inherent rights such as 
freedom of speech, freedom of press, freedom of religious 
worship, freedom of assembly, and the like. The last men¬ 
tioned objection was removed by the assurance on the part 
of the friends of the Constitution that in the event of rati¬ 
fication they would endeavor to have the Constitution 
amended at the earliest opportunity in such a way as to 
provide proper safeguards for the security of these rights, 
a promise which was carried out soon after the new govern¬ 
ment went into effect, by the adoption of the first ten 
amendments. 

Ratification by the States .—The first state to ratify the 
Constitution was Delaware, one of the small states whose 
delegates in the Philadelphia convention had been strongly 
opposed to changing the existing system. This state rati¬ 
fied on Decembers, 1787, without a dissenting vote. Its 
action was shortly followed by Pennsylvania, New Jersey, 
Georgia, and Connecticut, the last three of which were 
small states whose delegates in the Philadelphia convention 
had also been in the opposition. In Pennsylvania, however. 


RATIFICATION OF THE CONSTITUTION 


171 

the Constitution was ratified with less unanimity and only 
after a fierce struggle in which the Anti-Federalists at¬ 
tacked almost every part of it. Massachusetts was the 
next to ratify, although by a narrow majority, mafiy of the 
leading citizens being opposed or indifferent. Maryland 
and South Carolina followed, and finally the favorable 
action of New Hampshire on June 21, 1788, insured its 
success, since nine states had now ratified and the Con¬ 
stitution could be put into effect between the states that 
had so ratified. Four days later, before news of the ratifi¬ 
cation of New Hampshire was received, Virginia fell in 
line and ratified, in spite of the powerful opposition of 
Patrick Henry, Mason, Lee, and others. 

Attention was now turned to New York, where the op¬ 
ponents of the Constitution were believed to be in the 
majority. Geographically, New York was like a wedge 
which divided the Union into two parts, and hence its ad¬ 
hesion was especially desirable. By reason of her favorable 
commercial position, the state enjoyed great advantages un¬ 
der the Articles of Confederation, since she could collect and 
turn into her own treasury the duties on all articles coming 
into her ports from abroad—a privilege of which she would 
be deprived under the Constitution. It was not unnatural, 
therefore, that she should hesitate to exchange her position 
for one less favorable. When, therefore, the state conven¬ 
tion assembled to take action on the Constitution, it was 
found that about two thirds of the members were opposed 
to ratification. Among the friends of the Constitution, how¬ 
ever, was Alexander Hamilton, whose powerful argument 
prevailed, and the Constitution was ratified by a majority 
of three votes. 

Rhode Island, like New York, enjoyed a favorable posi¬ 
tion under the Articles of Confederation, and was not in 


172 


THE ESTABLISHMENT OF THE UNION 


sympathy with the Constitution. She refused to ratify 
and remained out of the Union until November, 1789, 
some months after the Constitution had gone into effect. 
North (Nrolina likewise refused to ratify until May, 1790. 

The Constitution Goes into Efect .—When the ratification 
of the Constitution had been assured, the old Congress of 
the Confederation enacted that the new government should 
go into effect on March 4, 1789. In the meantime senators 
and representatives were elected as the first members of 
the new Congress, and George Washington was chosen 
President. Thus the old Confederation passed away and 
the new Republic entered upon its great career. 

References.— Andrews, Manual of the Constitution, ch. ii. Beard, 
American Government and Politics, ch. hi. Bryce, The American 
Commonwealth (abridged edition), ch. ii. Fiske, Critical Period of 
American History, chs. vi-vii. Hinsdale, American Government, 
chs. vii-xi. 

Documentary Material.—i. The Articles of Confederation. 2. The 
Constitution. 

Research Questions 

1. Trace the steps leading up to the meeting of the convention 
which framed the Constitution. 

2. How were the delegates to the convention chosen? What, in 
general, was the nature of their instructions? Who was the oldest 
delegate? the youngest? the most distinguished? Who of them 
were signers of the Declaration of Independence? Who acted as 
president of the convention? 

3. Name the members of the convention who refused to sign the 
Constitution. 

4. Why did Hamilton, the author of the resolution calling the 
convention, take so little part in the work of making the Constitu¬ 
tion? 

5. Why did not New York send its ablest men to the convention? 

. 6. Did the convention organize itself into committees for the trans¬ 
action of business? 


RESEARCH QUESTIONS 173 

7. What was the attitude of some of the delegates from the East¬ 
ern states toward the West? 

8. In general, what part of the country was in favor of the Con¬ 
stitution and what part opposed? 

9. What were some of the objections urged against its adoption? 

10. Why was the Constitution not submitted to a direct vote of 
the people as is the custom with state constitutions. 

11. When the draft of the completed Constitution was laid before 
the Congress of the Confederation, did that body make any changes 
in it before submitting it to the states? 

12. Might North Carolina and Rhode Island have remained per¬ 
manently out of the Union? If so, what would have been their status? 

13. Do you think the time has come when the best interests of the 
country require a new Constitution? What is your opinion of the 
proposition that the country has outgrown the Constitution? 

14. What, in the light of more than a century’s experience, do you 
consider some of the defects of the Constitution? 

15. Do you think the procedure for amending the Constitution is 
too difficult? Has the Constitution, in fact, ever been amended 
except in times of crises? 

16. What is your opinion of the statement recently made by a 
noted scholar that the constitution now contains quite as much of 
customary matter as of written matter? 

17. Does Sir Henry Maine’s saying that “Constitutions grow in¬ 
stead of being made,” apply to the Constitution of the United States? 


CHAPTER X 


THE TWO HOUSES OF CONGRESS 

The House of Representatives.—The Constitution pro¬ 
vides that the national house of representatives—the lower 
house of Congress—shall consist of members chosen every 
second year by popular election. Under the Articles of Con¬ 
federation members of the old Congress were chosen an¬ 
nually, but that term was too short to enable them to acquire 
that familiarity with their duties which is essential to effi¬ 
cient legislation. The term of a representative begins on the 
4th of March in the odd-numbered years, though Congress 
does not meet until the first Monday in December following, 
unless the President calls it together in extraordinary ses¬ 
sion earlier. 

Sessions of Congress.—There are two regular sessions 
of every Congress; the long session which begins on the first 
Monday in December of the odd-numbefed years and lasts 
until some time in the following spring or summer; and the 
short session which begins on the same date in the even- 
numbered years and lasts until the 4th of March following 
when the terms of all representatives expire. Each Con¬ 
gress is numbered, beginning with the first, which began 
March 4th, 1789. The sixty-first Congress began March 4, 
1909, and ended March 4, 1911. Extraordinary sessions 
are sometimes called by the President to consider matters 
of special importance which need to be acted upon before 
the meeting of the regular session. From 1789 to 1911 

174 


SESSIONS OF CONGRESS 


175 

there were only thirteen such sessions, the last being that 
called by President Taft to meet April 15, 1911, to con¬ 
sider a reciprocity agreement with Canada. 

Number and Apportionment of Representatives. —The 
Constitution provided that the first house of representa¬ 
tives should consist of sixty-five members, but that as 
soon as a census of the inhabitants should be taken the 
number was to be apportioned among the several states on 
the basis of population, not exceeding one for every 30,000 
of the inhabitants. After each decennial census is taken a 
new apportionment is made by Congress on the basis of the 
new population. The total number of representatives in 
the sixty-first Congress was 391,^ being in the proportion 
of one member for every 194,000 inhabitants, which is 
known as the congressional ratio.^ The largest number 
from any one state was thirty-seven, the number from New 
York. Pennsylvania had thirty-two, Illinois twenty-five, 
Ohio twenty-one, and so on down the list. Six states were 
entitled to .but one member each, namely, Delaware, Idaho, 
Montana, Nevada, Utah, and Wyoming. As the popula¬ 
tion of several of these states is less than the congressional 
ratio, they might not be entitled to a single member but for 
the provision in the Constitution which declares that each 
state shall have at least one representative. 

^ Each of the Territories is represented in Congress by a delegate 
who is allowed to serve on certain committees and to take part in de¬ 
bate but not to vote. The Philippine Islands are represented by two 
Resident Commissioners, and Porto Rico by one. By courtesy they 
are allowed seats in the house of representatives, like territorial dele¬ 
gates, and may serve on cortimittees. 

2 In February, 1911, the house of representatives passed a bill 
fixing the number of members under the new census at 435, or one 
dor every 217,000 of the population, but it was not passed by the 
senate before the expiration of the Congress on March 4. 


THE TWO HOUSES OF CONGRESS 


176 

Election of Representatives.—The Constitution provides 
that representatives shall be chosen in each state by vote 
of such persons as are qualified to vote for members of the 
lower house of the legislature of that state. Thus it happens 
that the qualifications for participating in the choice of 
national representatives varies widely in the different states. 
But the choice must be made by the people, not by the 
legislature or by executive appointment, and, under the 
Fifteenth Amendment to the Federal Constitution, the 
states cannot, in fixing the suffrage, discriminate against 
any class of persons because of their color or race. Subject 
to these restrictions the states are practically free to limit 
the right to vote for national representatives to such of 
their citizens as they may see fit. It is true that the Four¬ 
teenth Amendment declares that whenever a state shall 
limit the right of its adult male citizens to vote except for 
crime its representation in Congress shall be proportion¬ 
ately reduced, but this provision has never been enforced. 
Some statesmen hold that it was really superseded by the 
Fifteenth Amendment. 

Manner of Choosing Representatives .—As in fixing the 
qualifications of the electors of representatives, so in the 
choosing of them, the states are left a free hand, subject 
to the provision of the Constitution which gives Congress 
power to alter the regulations of the states in regard to 
the manner and time of choosing members. For a long 
time Congress did not exercise its power in this respect and 
each state chose its representatives when it wished and in 
such manner as it pleased. Some states chose their repre¬ 
sentatives on general ticket from the state at large, while 
others chose theirs by districts; some chose by secret ballot, 
while others did not. To secure uniformity in regard to 
the method of choice, Congress enacted in 1842 that repre- 


ELECTION OF REPRESENTATIVES 177 

sentatives should be chosen by districts of contiguous 
territory containing populations as nearly equal to the 
congressional ratio as possible. In 1871 it enacted that 
they should be chosen by written or printed ballots (later 
choice by voting machine was also permitted). In 1872 
it enacted that representatives should be chosen on the 
same day throughout the Union, namely, Tuesday after 
the first Monday in November.^ 

Gerrymanderingy —When the number of representa¬ 
tives to which each state shall be entitled has been deter¬ 
mined, after the decennial census, it devolves upon the 
legislature to divide the state into as many districts as it 
is entitled to representatives. In the exercise of this power 
the political party in control of the legislature may arrange 
the districts in an unfair manner so as to make it possible 
for the party to elect a larger number of representatives 
than its voting strength entitles it to. This is done by 
putting counties in which the opposite party is in a large 
majority in the same districts so that it may choose a few 
members by large majorities, while the other party is left 
to carry the remaining districts by small majorities. Thus 
the voting strength of the party in power is economized 
and made to go as far as possible while that of the opposite 
party is massed in a few districts and made to count as little 
as possible. This practice has been long known as “gerry¬ 
mandering” and has been frequently resorted to by both 
the two great political parties, sometimes in such a man- 

1 By a subsequent act, those states whose constitutions provided 
a different day for choosing representatives were exempted from the 
provisions of the law mentioned above. In pursuance of this act, 
elections in Maine and Vermont are held in September, and in Oregon 
previous to 1910 they were held in June. In all other states they 
are held on the day fixed by Congress. 

Govt. U. S.—12 


178 THE TWO HOUSES OF CONGRESS 

ner as to result in flagrant injustice to the minority 
party. 

The requirement that the districts shall contain as nearly 
equal population as possible, is sometimes flagrantly vio¬ 
lated. Thus one of the Republican districts in New York 
recently contained 165,701 inhabitants while one of the 
Democratic districts had a population of 450,000 inhabit¬ 
ants. Under the apportionment act of 1903 one of the 
Illinois districts contained 170,000 while another contained 
286,000. 

Sometimes districts are so constructed as to have fan¬ 
tastic shapes. Thus a district in Mississippi some years 
ago was dubbed the “shoe string” district from its long 
irregular shape. It followed the Mississippi River for the 
whole length of the state though in one place it was less 
than thirty miles wide. 

Qualifications of Representatives.—To be eligible to the 
house of representatives, a man must have been a citizen 
of the United States for at least seven years, must have 
attained the age of twenty-five years, and must be an in¬ 
habitant of the state from which he is chosen. Residence 
in the particular district which the member represents is 
not required by the Constitution or laws of the United 
States, but is nearly always required by public opinion. 
A nonresident, however able and distinguished he might be 
as a statesman, would have little chance of election. 

Objections to the Residence Requirement .—This custom of 
insisting upon residence in the district has frequently been 
criticized, especially by foreign writers, as being a serious 
defect in our system of representation. It contrasts widely 
with the practice in Great Britain, where members of Parlia¬ 
ment are very often chosen from other districts than those 
in which they reside. Lcrndon barristers of promise are 


QUALIFICATIONS OF REPRESENTATIVES 179 

not infrequently chosen to represent country districts in 
which they are practically strangers. The late William E. 
Gladstone, a resident of Wales, represented for a long time 
a Scotch district. When an important leader of any party 
in the House of Commons happens to be defeated in his 
home district, it is a common practice for him to be made a 
candidate in some district in which his party has a safe 
majority. In the United States, in such a case, the man’s 
service in Congress would probably be ended. 

Finally, one of the worst evils of the district system is 
that it tends to make the member feel that he is the repre¬ 
sentative, not of the United States as a whole, but of the 
locality which chooses him. Instead of entertaining broad 
views upon purely national questions his views tend to 
become narrow and he votes and acts with reference to 
the welfare of his own district rather than with reference 
to the good of the whole country. On the other hand, it 
may be said in favor of the district system that it is better 
adapted to secure local representation and makes respon¬ 
sibility to the member’s constituency more effective. 

The Senate. — Term .—As already stated, the Constitution 
provides that the states shall be represented equally in the 
senate—the upper house of Congress. It also provides that 
each state shall elect two senators and that each senator 
shall have one vote. Under the Articles of Confederation, 
each state had one vote in Congress, and the vote of the 
state could not be divided; but under the Constitution the 
two senators from a state frequently vote on opposite sides 
of a question, especially if they belong to different political 
parties. On the question of the term of senators there was 
much difference of opinion among the members of the 
convention. Some favored a two-year tenure, some four 
years, some six, some nine, while Alexander Hamilton fa- 


l8o THE TWO HOUSES OF CONGRESS 

vored a life tenure. The term finally agreed upon was six 
years, which seemed to be long enough to give the senate 
an element of permanence and independence, and yet short 
enough to secure responsibility to the people. 

Classification of Senators .—The Constitution provided 
that immediately upon the assembly of the senators after 
the first election they should be divided into three classes 
and that the seats of those in the first class should be va¬ 
cated at the end of the second year, those of the second 
class at the expiration of the fourth year, and those of the 
third class at the expiration of the sixth year, so that there¬ 
after one third might be chosen every second year. The 
purpose of this provision is to avoid having the entire 
senate renewed at the same time. As a result, not more 
than one third are new and inexperienced members at any 
particular time. When a new state is admitted to the 
Union, its first two senators draw lots to see which class 
each shall fall in. In 1911 there were thirty senators in the 
first class,and their terms expire March 4, 1911; thirty-one 
in the second class, and their terms expire March 4, 1913; 
and thirty-one in the third class, and their terms expire 
March 4, 1915. The three classes are kept as nearly equal 
as possible. 

Reelection of Senators .—While the term of a senator is 
six years, he may be reelected as often as the legislature 
of his state may see fit to honor him, and in practice reelec¬ 
tions are frequent. Justin S. Morill of Vermont, John 
Sherman of Ohio, and William B. Allison of Iowa, each 
served continuously for a period of thirty-two years. Nearly 
one third of the senators in 1911 had served twenty years 
or more. Thus the senate is an assembly of elder states¬ 
men and is a more conservative and stable body than the 
house of representatives. 


MODE OF ELECTION OF SENATORS i8i 

Mode of Election of Senators.—In regard to the mode 
of election of senators there was a wide difference of opinion 
among the members of the convention. Some favored 
choice by the people; others favored election by the lower 
house of Congress; some proposed appointment by the 
President from persons nominated by the state legislatures; 
while others proposed election by the state legislatures, 
which was the method finally agreed upon. As the lower 
house was to be chosen by the people it was felt that the 
senate should be chosen in a different manner. Moreover, 
choice by the legislature would be the means of forming a 
connecting link between the state governments and the 
national government and would thereby tend to attach the 
former to the latter—an important consideration then, in 
view of the prevailing jealousy of the state governments 
toward the national government. Thus while the lower 
house would directly represent the people, the senate would 
represent the states as the constituent members of the fed¬ 
eral union. Finally, it was believed that choice by the 
legislature would tend to secure the election of senators of 
greater ability since the members of the legislature would 
be more famihar with the qualifications of candidates than 
the masses of the people could hope to be. 

Congressional Regulation of Senatorial Elections .—While 
the power to choose senators was given to the legislatures, 
Congress was empowered to regulate the time and manner 
by which the choice should be made. For a long time, 
however. Congress abstained from interfering in the matter 
and left the legislatures to choose senators whenever and 
in such a manner as they saw fit. In some states they were 
chosen by joint vote of the two houses of the legislature, 
in others they were chosen by concurrent vote, that is, by 
the two houses acting separately as they do in passing laws. 


i 82 


THE TWO HOUSES OF CONGRESS 


Where the latter method prevailed, deadlocks were frequent, 
since it often happened that the two houses of the legisla¬ 
ture were controlled by different political parties and either 
house could prevent the election of a man to which it was 
opposed. Finally, in 1866, Congress passed a law providing 
for a uniform system of election, and this law is still in force. 
In brief, it provides that on the first Tuesday after the meet¬ 
ing and organization of a legislature upon which the choice 
of a senator devolves, the two houses shall meet separately 
and by a viva voce vote propose persons for senator. On the 
following day the two houses must meet in joint assembly 
and canvass the results of the preceding day’s vote. If each 
house has given a majority vote to the same man he is 
elected; otherwise the joint assembly mast meet each suc¬ 
ceeding day at noon and take at least one vote until a sena¬ 
tor is elected. Before proceeding to choose a senator the 
members of each party usually hold a caucus and agree 
upon the candidate that they will support, otherwise the 
scattering of the votes of the members of the majority 
among different candidates might delay the election or re¬ 
sult in the election of a candidate by the minority party. 
Generally the action of the caucus in the case of the ma¬ 
jority party is equivalent to an election. 

Right of the Legislature to Instruct Senators.—The 
claim has sometimes been put forward that the legislature 
of the state may instruct its senators as to how they shall 
vote on a particular measure, somewhat as a government 
instructs its diplomatic representatives, and in several in¬ 
stances legislatures have exercised the power. In some 
cases the senators thus instructed have obeyed the in¬ 
structions; in other cases they have refused and whenever 
they have done so no means were found for enforcing obe¬ 
dience. The better opinion is that the legislature has no such 


RIGHT OF LEGISLATURE TO INSTRUCT SENATORS 183 

right of instruction. The modern idea of representation is 
that the representative should be left free to vote and act 
according to his own enlightened judgment without duress 
upon his intellect or conscience. Not infrequently the sena¬ 
tor belongs to a different political party from that in control 
of the legislature, in which case the senator could hardly 
be expected to obey its instructions. Sometimes legisla¬ 
tures ‘Tequest” their senators to support or oppose a par¬ 
ticular measure, a course which is perfectly proper, and the 
request should not be* lightly disregarded. As representa¬ 
tives are chosen directly by the people, there is no body in 
existence which can instruct them and hence the right of 
instruction in such cases has never been asserted. 

Objections to the Method of Choice by the Legislature. 
—One of the practical objections to the present method of 
choosing senators is that it frequently leads to long and 
stubborn contests which sometimes end in deadlocks. Not 
infrequently the legislature fails to elect a senator and the 
state is left with a vacancy in the senate. In such cases the 
governor cannot fill the vacancy by appointment as he 
may when a senator dies or resigns; the seat remains empty 
until a senator is chosen by the legislature. Since 1890 
not less then eleven states have at one time or another 
been represented in the senate by one member only, and in 
1901 Delaware, on account of repeated deadlocks, had no 
senator at all at Washington to speak for the state. Not 
infrequently such contests are broken through the selection 
of a second rate man or by an alliance between the members 
of the minority party and certain members of the majority. 

Bribery .—The breaking of deadlocks is sometimes ac¬ 
complished by bribery or other improper influences. In¬ 
deed charges of bribery and corruption in connection with 
the election of senators have come to be very common, and 


184 THE TWO HOUSES OF CONGRESS 

there is little doubt that between 1895 and 1910 a number 
of wealthy men found their way into the senate through 
the votes of legislators who were liberally paid for their 
support. Under these circumstances it is frequently said 
that the senate is no longer truly representative of the in¬ 
terests of the people. 

Interference with Legislative Business .—What has come 
to be a very serious objection to the present method of 
choosing senators is that a prolonged senatorial contest in¬ 
terferes too much with the regular business of the state 
legislature. Where the session is limited to two or three 
months, as it frequently is, the inroads which are thus made 
upon the time at the disposal of the legislature for looking 
after the needs of the state are considerable.^ Worse than 
the loss of time is the demorahzation and confusion which 
necessarily characterizes the proceedings of the legislature 
under such circumstances. Members are badgered by can¬ 
didates, their time is consumed in attending caucuses and 
secret meetings, passions and animosities are engendered, 
a party coloring is given nonpartisan measures, and the 
votes of members on legislative measures are sometimes 
determined by the senatorial contest, rather than by the 
merits of the measure on which they are called to vote. 

Popular Election of Senators.—The dissatisfaction with 
the present method of choosing senators has in recent years 
led to a movement to secure an Amendment to the Consti¬ 
tution providing for the election of senators by the people. 

1 In 1897 the business of the legislature of Oregon was completely 
tied up for months because a sufficient number of members of the 
lower house, in order to prevent the election of a certain senator, 
absented themselves from the chamber and prevented a quorum. 
Not a bill could be passed or a dollar of money appropriated for meet¬ 
ing the current expenses of the state. Haynes, “Election of Senators.” 


POPULAR ELECTION OF SENATORS 185 

But the senate itself has blocked every attempt of this 
kind. Five different times since 1893 national house 
of representatives has by a large majority proposed an 
amendment for this purpose, but each time the senate re¬ 
fused its concurrence. The Democratic, Socialist Labor, 
People’s, and Prohibition parties have in their national 
platforms all pronounced in favor of popular election. In 
one form or another, moreover, the legislatures of thirty- 
one states have approved of the method of popular election 
and wherever a referendum has been taken on the proposi¬ 
tion, as has been done in California, Nevada, and Illinois, 
the popular indorsement has been overwhelming. 

Provisions of Recent Primary Laws. —While, owing to 
the opposition of the senate, all efforts to amend the Consti¬ 
tution so as to secure popular election have resulted in 
failure, the substance if not the form of popular election 
has been secured in a number of states through direct 
primary laws which allow the voters at the primary elec¬ 
tion to express their choice for senator. The result of the 
primary, however, is nothing more than an expression of 
opinion, and is not legally binding on the legislature, which, 
under the Constitution, has the absolute right of choice. 
Generally, however, the legislature treats the result of the 
popular election as morally binding and chooses the candi¬ 
date who has received the largest popular vote. 

The Oregon Method .—A recent amendment to the con¬ 
stitution of Oregon provides a unique method for bringing 
pressure to bear upon the legislature to elect the candidate 
who has received the largest popular vote at the general elec¬ 
tion. When a person becomes a candidate for the legislature 
he is asked to sign one of two statements: (i) that if elected 
he will regard the result of the popular election as binding 
upon him and will cast his vote for the senatorial candidate 


i86 


THE TWO HOUSES OF CONGRESS 


who has received the highest popular vote; or (2) that he will 
consider the result of the popular election as advisory only 
and will cast his vote in accordance with his best judgment. 
Since a candidate who signs the second statement would gen¬ 
erally lessen his chance of election, the result is that practi¬ 
cally every member elected to the legislature is pledged to 
vote for the people’s choice for senator. At a recent election 
in that state the Democratic candidate for senator received 
the highest popular vote and was elected by a Republican 
legislature, whose members were pledged to abide by the 
results of the popular vote. This is the most effective 
scheme for popular election of senators yet devised. 

Qualifications of Senators.—The qualifications prescribed 
for eligibility to the senate are the same in principle as 
those required of representatives, though a little different 
in degree. Thus a senator must be at least thirty years of 
age, must have been a citizen of the United States for nine 
years and must be a resident of the state at the time of his 
election. It was thought that the longer term and higher 
qualifications would tend to give greater dignity and 
strength to the upper chamber than would be found in the 
lower house, and at the same time a higher average of 
ability. 

There is no provision of the Constitution which requires 
a senator to be a resident of a particular part of the state, 
but in some states there is a custom that the two senators 
shall be taken from different sections. Thus in Vermont 
custom requires that one senator shall come from the sec¬ 
tion of the state east of the Green Mountains and the other 
from the west side. Sometimes when there is a large city 
in the state it is the custom to choose one of the senators 
from the city and the other from the country. For a long 
time Maryland did not trust this matter to custom but by 


QUALIFICATIONS OF SENATORS 187 

law enacted that one of the senators should be an inhabitant 
of the eastern shore and the other of the western shore. 

Decisions as to Congressional Elections and Member¬ 
ship. —Each house of Congress is the judge of the election, 
qualifications, and returns of its own members, that is, it 
is empowered to determine whether a member who claims 
to have been elected has been legally chosen and whether 
he really possesses the qualifications prescribed by the 
Constitution for membership in the house. It seems to 
be admitted that either house may also refuse to admit 
a member for other reasons than those prescribed by the 
Constitution, as, for example, for having committed a crime 
or because he is insane or suffering with a dangerous con¬ 
tagious disease. Thus in 1900 the house of representa¬ 
tives refused to allow a member from Utah to take his seat 
because he was a polygamist, although he possessed all 
the qualifications required by the Constitution and had 
been lawfully elected. 

Contested Elections .—Frequently there is a contested 
election from a state or district, that is, two men claim to 
have been elected to the same seat, in which case the house 
must decide which one is entitled to the seat. In such a 
case the claims of the contestant and the contestee are 
heard by the committee on privileges and elections, which 
makes a report to the house with a recommendation as 
to which shall be given the seat. Unfortunately, contested 
election cases are not always settled on their merits, the 
seat being usually given to the claimant who belongs to 
the party which has a majority in the house. In England 
this source of party favoritism is removed by vesting the 
settlement of cases of contested elections in the courts, 
which are more apt to decide such contests on their merits. 

Power of Expulsion .—When a member has once been 


i88 


THE TWO HOUSES OF CONGRESS 


admitted to his seat, he can be deprived of it only by ex¬ 
pulsion, and to prevent the employment of this power for 
party purposes, the Constitution provides that the con¬ 
currence of two thirds of the members shall be necessary 
to expel a member. Several instances of expulsion have 
occurred in the past. Senator Blount of Tennessee was 
expelled from the senate in 1797, and a number of other 
cases occurred in each house during the Civil War. 

Compensation of Members of Congress.—The Constitu¬ 
tion declares that senators and representatives shall receive 
a compensation for their services, the same to be paid out 
of the treasury of the United States. Under the Articles 
of Confederation, each state paid its own members of Con¬ 
gress, and there was no uniformity in respect to the scale 
of compensation. Some states paid much smaller salaries 
than others and in order to reduce the burden of maintain¬ 
ing their representatives, the states generally sent to Con¬ 
gress the fewest number of representatives required, and 
as each state had only one vote, nothing was lost by having 
a minimum number present. One other objection to the 
method of state payment was that it tended to make the 
representative dependent upon his state and caused him to 
feel that he was the representative of a state rather than 
of the country as a whole. 

In fixing the amount of the compensation of its members. 
Congress is subject to no restrictions. It may fix the salary 
at any amount it pleases, may make it retroactive in effect 
or may increase the amount at any time during the term 
for which the members are chosen. The present salary of 
senators and representatives is $7,500 per year, but the 
Speaker of the house receives $i 2,000 per year. In addition, 
each member receives $1,200 a year for a secretary, $125 a 
year for stationery, and mileage of twenty cents per mile 


COMPENSATION OF MEMBERS OF CONGRESS 189 

going and coming by the nearest route between their home 
and the national capital. This latter perquisite is intended 
to cover the travehng expenses of the member and his 
family. 

In Great Britain and some of the countries of continental 
Europe members of Parliament do not receive any com¬ 
pensation from the public treasury unless they happen to 
be members of the cabinet. Sometimes, however, members 
who represent sociahst or labor parties are paid by volun¬ 
tary contributions by the members of their party. Gener¬ 
ally where members of European Parliaments are paid from 
the public treasury, the amount is much smaller than in 
the United States. The advantage of the American prac¬ 
tice of paying members of Congress a reasonable compen¬ 
sation is that it enables competent men without private 
incomes to serve the state equally with the well-to-do who 
are not dependent upon their public salaries for a livelihood. 

The Franking Privilege .—Another privilege which Con¬ 
gress allows its members is to send their mail through the 
post office without the payment of postage. The spirit 
of the law restricts the privilege to the official, correspond¬ 
ence of members, but the privilege is generally abused. 
Thus a senator from South Carolina was recently criticized 
by the post-office department for franking his typewriter 
through the mails. Other members have been known to 
send their wearing apparel and household furniture through 
the mails without payment of postage. President Taft in 
his annual message to Congress in December, 1910, dwelt 
upon the abuses of this privilege by members of Congress 
and other government officials. 

Rights and Privileges of Members of Congress.—The 
Constitution provides that members shall not be arrested 
in any case except treason, felony, and breach of the peace. 



THE TWO HOUSES OF CONGRESS 


190 

during their attendance at the sessions of their respective 
houses and in going to and from the same; and for any 
speech or debate in either house, they cannot be questioned 
in any other place. The purpose of the first provision is 
to prevent interference with members in the discharge of 
their high and responsible duties, through arrest for trivial 
offenses or trumped-up charges. If a member, however, 
commits an offense amounting to a breach of the peace, 
his immunity from arrest ceases and he may be dealt with 
by the courts as any other offender. The object of the 
second provision is to secure to members absolute freedom 
of speech on the floor of Congress by relieving them from 
the liability to prosecution for slander for anything they 
may say in the course of debate. 

Disqualifications .—On the other hand, the Constitution 
provides that no person holding any office under the United 
States shall be a member of either house of Congress during 
his continuance in office. This provision was adopted in 
pursuance of the view that the executive and legislative 
departments should, as far as practicable, be kept separate. 
Moreover, no senator or representative may, during the 
time for which he is elected, be appointed to any civil office 
which shall have been created or the emoluments of which 
shall have been increased during such time. The purpose 
of this provision is to prevent Congress from creating new 
offices or increasing the salaries of existing offices for the 
benefit of members who might desire to be appointed to 
them. 

Special Functions of the Senate.—The senate is not only 
a coequal branch of the national legislature but it possesses 
in addition certain functions of a special character. 

Share in the Appointing Power .—First of all, it shares 
with the President the power of appointment to federal 


SPECIAL FUNCTIONS OF THE SENATE 191 

offices. The Constitution makes its approval necessary 
to the validity of all appointments made by the executive, 
the idea being that the participation of the senate would 
serve as a restraint upon the errors or abuses of the Presi¬ 
dent and thus insure the appointment of honest and capable 
men to office. But it was never intended to give the senate 
anything more than the negative power of rejecting the 
nominations of the President. It is his power to nominate 
and that of the senate to approve or disapprove the nomina¬ 
tion. Nevertheless, there has grown up in the senate a 
practice by which the senators from a particular state in 
which an appointment to a federal office is to be made, 
claim the right to select the appointee themselves and when 
they have agreed upon him to present his name to the 
President for appointment; provided, of course, that they 
are of the same party as the President. If the President 
refuses to comply with the request of the senators from a 
particular state, and nominates an official who is unac¬ 
ceptable to them, the custom of “senatorial courtesy,” 
which has become one of the traditions of the senate, re¬ 
quires that the senators from the other states shall stand 
by their associates in question and reject the nomination 
of the President. In this way the senate has, in effect, 
assumed the power of dictating to the President appoint¬ 
ments to many federal offices in the states, such as those 
of postmaster, federal judge, attorney, revenue collector, 
and the like. If the two senators from a state belong' to 
different political parties, the one with whom the Presi¬ 
dent is in political sympathy controls the federal patronage 
in the state. 

Share in the Treaty-Making Power .—The senate also 
shares with the President the power of making treaties 
with foreign countries. The ordinary procedure is for the 


192 


THE TWO HOUSES OF CONGRESS 


President, through the Department of State, to negotiate 
the treaty, after which it is laid before the senate for its 
approval. Approval by a two-thirds vote of the senators 
is necessary to the validity of the treaty. The purpose of 
giving the senate a share in the treaty-making power was 
to provide a check or restraint upon the possible abuses or 
errors of the executive. The extraordinary majority re¬ 
quired for the approval of the treaty, however, has fre¬ 
quently proved a handicap and led to the defeat of a number 
of valuable treaties. Thus a small factious political mi¬ 
nority can prevent the ratification of a treaty and some¬ 
times does so when it sees an opportunity to reap political 
advantage thereby. 

The Constitution speaks of the “advice and consent” 
of the senate, but in practice all the senate does is to give 
its consent. In the early days, however, the President not 
infrequently requested the “advice” of the senate before 
starting the negotiation of a treaty, and if the advice was 
unfavorable the proposed negotiations were abandoned. 
Even now if the President has doubts as to whether a pro¬ 
posed treaty would receive the approval of two thirds of 
the senate he will consult with the members of the senate 
committee on foreign relations and with other influential 
members of both parties, before beginning the negotiations. 

The senate may reject a treaty in toto, and has done so in 
many instances, or it may amend a treaty laid before it, in 
which case it must be sent back to the government of the 
other country which is a party thereto for concurrence in 
the amendments. After the senate has consented to the 
ratification of a treaty, the President may ratify or not as 
he likes. 

The Senate as a Court of Impeachment .—Another special 
function of the senate is that of acting as a court for the 


SPECIAL FUNCTIONS OF THE SENATE 


193 

trial of impeachment cases. The Constitution declares 
that the President, Vice President, and all civil officers 
of the United States shall be removed from office on im¬ 
peachment for and conviction of treason, bribery, or other 
high crimes and misdemeanors. Military and naval officers 
are tried by court-martial and are not therefore liable to 
impeachment.^ To impeach an officer is to bring charges 
against him. So far as federal officers are concerned this 
power belongs exclusively to the house of representatives, 
which acts somewhat as a grand jury does in finding in¬ 
dictments against ordinary criminals. When sitting as a 
court of impeachment the senators are under a special oath, 
and when the President is on trial the chief justice of the 
Supreme Court is the presiding officer instead of the Vice 
President, who, in such a case, would be directly interested 
in the outcome of the trial, since in the event of the convic¬ 
tion and removal of the President he would succeed to the 
office. Managers appointed by the house of representatives 
appear at the bar of the senate to prosecute the charges 
preferred by the house, witnesses are examined, evidence 
presented, and the accused is defended by counsel of his 
own choosing. In order to prevent the employment of 
the impeachment power for party purposes, the Consti¬ 
tution provides that the concurrence of two thirds of the 
senators shall be necessary to convict. 

The punishment which the senate may inflict in case of 
conviction is limited to removal from office and disqualifi¬ 
cation from holding office in the future. The Constitution 
makes it mandatory upon the senate to remove the con¬ 
victed official, but whether he shall forever be disqualified 

1 That members of Congress are not liable to impeachment was 
determined in the case of William Blount, a senator from Tennessee 
in 1797, the senate deciding that it had no jurisdiction of the case. 

Govt. U. S.—13 


THE TWO HOUSES OF CONGRESS 


194 

from holding office in the future is left to the discretion of 
the senate. In England the House of Lords, which tries 
impeachment cases, is not limited in the extent of punish¬ 
ment which it may inflict, but may if it wishes sentence 
the convicted official to imprisonment or the payment of 
a fine. While the senate of the United States cannot do 
this, the person convicted and removed may, nevertheless, 
be indicted and tried by the courts as any other criminal 
may. 

The procedure of removing an officer by impeachment is 
so cumbersome and unwieldy that it has rarely been re¬ 
sorted to. During our entire history there have been only 
seven impeachment trials of federal officers, and of these 
there were convictions in but two cases. ^ If this were the 
only method of removal it would be difficult to get rid of 
corrupt and incompetent officials, but it must be remem¬ 
bered that any federal official except the judges may be 
removed from office by the President for any reason that 
to him seems fit and proper; and the power is frequently 
exercised. 

1 The first was that of Judge John Pickering of the United States 
District Court of New Hampshire, March, 1803. The second was 
that of Judge Samuel Chase, of the Supreme Court, March, 1804. 
James H. Peck, District Judge of Missouri, was impeached in April, 
1830; West H. Humphreys, District Judge of Tennessee, May, 1862; 
Andrew Johnson, President of the United States, February, 1868; 
William W. Belknap, Secretary of War, March, 1876, and Charles 
Swayne, Judge of the United States District Court for Florida, 1905. 
Of these Pickering and Humphreys were convicted and removed from 
office, while Humphreys was in addition disqualified from holding 
federal office in the future. Belknap resigned before impeachment 
charges were preferred, but the senate decided that it had jurisdiction, 
nevertheless, and the trial was proceeded with only to result in his 
acquittal. 


RESEARCH QUESTIONS 


IQS 

References.— Andrews, Manual of the Constitution, pp. 47-68. 
Beard, American Government and Politics, chs. xii-xiii. Bryce, 
The American Commonwealth (abridged edition), chs. ix-xii. Har¬ 
rison, This Country of Ours, ch. ii. Hart, Actual Government, 
ch. xiii. Hinsdale, American Government, chs. xvii-xxiii. Wilson, 
Congressional Government, secs. 1273-1293. 

Documentary and Illustrative Material.—i. Copy of the Congres¬ 
sional Directory. 2. Copies of the Congressional Record. 3. A map 
showing the Congressional districts of the state. 

Research Questions 

1. How many representatives in Congress has your state? 

2. Is there any evidence that your state is “gerrymandered”? 

3. In what congressional district do you live? How many counties 
are there in the district? What is its population? How much does 
the population vary from the congressional ratio? WTio is your 
representative? How many terms has he served? What is his party? 
By how large a majority was he elected? 

4. Who is the senior senator from your state? The junior senator? 
How many terms has each served? To which of these classes does 
each belong? 

5. If the congressional ratio of 1903-1913 were maintained during 
the next decade, what would be the total number of representatives 
in the house? See the census returns. Do you think the number 
is too large? 

6. Is the present salary of members of Congress sufhciently large 
to attract the best men? Do you think the British custom of not 
paying salaries to members of Parliament a wise one? 

7. Do you think members of Congress are morally entitled to “con¬ 
structive” mileage, that is, for mileage not actually traveled, as 
where one session merges into another? 

8. Members of the British Parliament are elected for a term of 
seven years, those of the German Reichstag for five years, those of 
the French Chamber of Deputies for four years. In view of these 
rather long terms, do you think a two-year term for American repre¬ 
sentatives is too short? 

9. Do you think the practice of members of Congress of distribut¬ 
ing large quantities of garden seed among their constituents at public 
expense a wise or a vicious one? 


THE TWO HOUSES OF CONGRESS 


196 

10. Do you think public documents printed by authority of Con¬ 
gress should be distributed free of cost to all who desire them? 

11. What is your opinion of the practice of members of Congress 
of printing in the Congressional Record long speeches never delivered 
in Congress? 

12. Would the nomination of members of Congress by direct pri¬ 
mary be a better method than nomination by convention? 

13. What would be the advantage in requiring a newly elected 
Congress to assemble shortly after the election instead of about thir¬ 
teen months thereafter, as is the present rule? 

14. Are women eligible to membership in either house of Congress? 

15. Give some of the reasons why, in your judgment, senators 
should be elected by the people. 

16. Ought the qualifications for voting for representatives in Con¬ 
gress to be determined by national authority instead of by the states? 

17. Ought a representative to be required to be a resident of the 
district from which he is elected? 

18. Do you think the states should be equally represented in the 
senate? 


CHAPTER XI 


ORGANIZATION AND PROCEDURE OF CONGRESS 

Organization of the Two Houses.— Officers .—Each house 
of Congress is free to organize itself in such a manner as 
it pleases, and to choose its own officers, except that the 
Vice President of the United States is, by the Constitution, 
made the presiding officer of the senate. The presiding 
officer of the house of representatives is called the speaker; 
that of the senate, the president. Each house has one or 
more clerks who keep the journals, call rolls, read bills, 
and have custody of all bills, resolutions, petitions, and 
memorials; a sergeant-at-arms who preserves order, has 
charge of the halls, pays members their salaries, and per¬ 
forms various other duties a postmaster; a doorkeeper; 
a chaplain; and other minor officials. 

Opening of a New Congress .—When a new Congress 

1 The sergeant-at-arms of the house of representatives has custody 
of the mace which is the symbol of the authority of the house. It is 
a representation of the Roman fasces in ebony, and is surmounted by 
a globe and an eagle in silver. During the session it is kept in the 
place provided for it near the speaker’s desk, but when disorder breaks 
out in the course of the debates, the sergeant-at-arms takes the mace 
from its accustomed place and proceeds, bearing it aloft, to the part of 
the house where the disorder prevails. He then commands order in 
the name of the house, and if the display of the mace is not sufficient 
to restore order, the house may order the disorderly member or mem¬ 
bers to be arrested. 


197 


198 ORGANIZATION AND PROCEDURE OF CONGRESS 

assembles, the house of representatives is called to order 
by the clerk of the preceding house. He then calls the roll 
of the members whose credentials or certificates of election 
have been filed with him, and if a quorum is present the 
house proceeds to the election of a speaker. The members 
of each political party represented in the house have al¬ 
ready in caucus agreed upon their candidates, and they 
are now put in nomination before the house by some member 
representing each party. Usually the action of the caucus 
of the majority party is equivalent to an election, and the 
house has only to ratify its choice. In several instances, 
however, the election of the speaker involved long and bitter 
contests. Thus in 1855 and again in 1859 two months were 
consumed by the house in the effort to choose a presiding 
officer. 

The senate, on the other hand, is always an organized 
body. The presiding officer—the Vice President—at the 
opening of a new Congress calls the senate to order, and the 
other officers, who hold during the pleasure of the senate, 
resume their duties. The senate elects one of its own mem¬ 
bers as president pro tempore to preside over its delibera¬ 
tions during the absence of the Vice President or in case 
there is no Vice President, as has often happened. 

The Oath of Office is usually administered to the speaker 
by the oldest member in point of service,—called ‘The 
Father of the House,”—after which the speaker calls the 
other members to the front—usually by state delegations— 
and administers the oath to them. Newly elected senators 
are escorted to the Vice President’s desk, usually each by 
his state colleague, and are sworn in individually. 

Adoption of the Rules .—After the administering of the 
oaths of office, the house adopts the rules of the preceding 
Congress for regulating its procedure pending the adoption 


ORGANIZATION OF THE TWO HOUSES 


199 

of new rules. Usually this is a perfunctory performance and 
is carried through without opposition. At the opening of 
the sixty-first Congress, however, strong opposition was 
manifested toward the old rules and they were not re¬ 
adopted until important amendments had been made in 
them. 

After the adoption of the rules each house appoints a 
committee to notify the other of its readiness for business, 
and the two then appoint a joint committee to inform the 
President of the United States that Congress is ready to 
receive any communication that he may be pleased to make. 
The message of the President is then laid before each house 
and the business of Congress proceeds. 

Quorum.—The Constitution provides that a majority 
of each house shall constitute a quorum for the transaction 
of business, but that a smaller number may compel the 
attendance of absent members in such manner and under 
such penalties as each house may prescribe. 

Old Method of Counting a Quorum .—For a long time the 
method of ascertaining whether a quorum was present was 
by a roll call. If the roll call failed to show the presence of 
a majority, the speaker ruled that no quorum was present, 
even though every member of the house was actually in his 
seat. In the course of time this rule came to be frequently 
abused by the minority for the purpose of preventing con¬ 
sideration of measures to which it was opposed. Thus in 
January, 1890, when the Republicans had only a slight 
majority in the house of representatives, the Democrats 
were able, owing to the absence of a few Republican members, 
to break a quorum and prevent consideration of important 
measures, by refusing to answer to the roll call. On a 
notable occasion in January, 1890, the roll call showed 161 
yeas, 2 nays, and not voting 165, the 165 who refused to 


200 ORGANIZATION AND PROCEDURE OF CONGRESS 

vote being Democrats who were opposed to the taking up 
of a certain measure which the Republicans desired to pass. 
Under the rules the roll call did not show a quorum present, 
though more than two thirds of the members were actually 
in their seats. 

The New Method .—The Republican majority therefore 
adopted a new rule, that members who were actually in 
their seats were to be counted by the speaker as present, no 
matter whether they voted or not. The action of Speaker 
Reed in enforcing this rule raised a storm of protest by the 
minority, but he courageously stood his ground. The new 
rule was readopted by the next Congress though the Demo¬ 
crats were then in the majority, and it has been continued 
ever since with the exception of one or two Congresses 
when the old rule was reverted to. Much of the business 
of Congress is really done, however, when there is no quorum 
present, this being permissible so long as the point of “no 
quorum ” is not raised by any member. 

Open Sessions.—The ordinary sessions of both houses 
are open to the public, though until 1794 the senate held 
its sessions in secret. When the senate goes into executive 
session, that is, when it is considering nominations of the 
President to public office or is engaged in considering treaties, 
the galleries are cleared, the doors closed, and its delibera¬ 
tions are conducted in secret, though the results of its trans¬ 
actions usually leak out in some way. 

Seating of Members.—The chamber for each house is 
furnished with a suitable number of seats, with a desk for 
each member. In the house of representatives, seats are 
assigned to members by lot at the opening of Congress, the 
Democrats being seated on the right of the speaker and 
the Republicans on the left, though it is customary to allow 
the leader of the minority party and one or two other mem- 


SEATING OF MEMBERS 


201 


bers of long service to select their seats without resort to 
lot. In the senate, each seat as it becomes vacant is as¬ 
signed to the member who first makes application for it 
to the presiding officer. At the present time the house 
chamber is so large that members who occupy the rear seats 
are at a great disadvantage and speech making is carried on 
with great difficulty. The senate chamber is less spacious, 
and debate can be conducted with much greater satisfaction 
and effectiveness. It would be a great advantage if the 
number of representatives could be reduced to 250 or 300 
so as to make the house less unwieldy, but as such a reduc¬ 
tion would result in depriving a number of members of 
their seats, there is little probability that such a reform will 
ever be effected. If smaller in size, the house could transact 
its business with more dispatch, give more careful considera¬ 
tion to bills, and allow members a greater opportunity for 
discussion.^ 

Committees.—Obviously an assembly approximating 
400 members cannot legislate effectively as a whole; its 
work must be done largely by committees. To some com¬ 
mittee every measure and every petition is referred, as 
are also the various recommendations of the President. In 
the sixty-first Congress there were seventy-two standing 
committees in the senate and sixty-two in the house. Usu¬ 
ally there are also several select committees, and occa¬ 
sionally a few joint committees. In the senate the com¬ 
mittees vary in size from three to twenty members; in the 
house from five to twenty. 

The most important committees in the senate are those 
on appropriations, commerce, finance, foreign relations, in- 

1 Provision has recently been made for removing the desks from 
the hall of the house of representatives and for rearranging the seats 
so as to reduce the area of the chamber. 


202 ORGANIZATION AND PROCEDURE OF CONGRESS 


terstate commerce, judiciary, military affairs, naval affairs, 
and public expenditures. The least important are those on 
disposition of useless papers, woman suffrage. University 
of the United States, and Revolutionary claims, since there 
is little or no business referred to them. The most impor¬ 
tant committees in the house are those on ways and means, 
appropriations, banking and currency, foreign affairs, inter¬ 
state and foreign commerce, judiciary, military affairs, naval 
affairs, public buildings and grounds, rivers and harbors, 
and rules (twelve members now, formerly five). Probably 
the least important are those on alcoholic liquor traffic, 
disposition of useless papers, and ventilation and acoustics.^ 

Method of Choosing Committees .—In the senate committee 
assignments are nominally made by the senate itself, but 

1 There are obvious objections to a system in which legislation is 
necessarily framed to a large extent by committees. These objections 
are thus stated by ]\Ir. Bryce in his “American Commonwealth 

1. It destroys the unity of the house. 

2. It prevents the capacity of the best members from being brought 
to bear on any one piece of legislation, however important. 

3. It cramps debate. 

4. It lessens the cohesion and harmony of legislation by allowing 
each committee to go its own way with its own bills just as though it 
were legislating for one planet and the other committees for others. 

5. It gives facilities for the exercise of underhand and even corrupt 
influence, and encourages “log rolling.” 

6. It reduces responsibility by dividing it among different com¬ 
mittees. 

7. It lowers the interest of the nation in the proceedings of Congress. 

8. It throws power into the hands of the chairmen of committees, 
especially those which deal with finance and other great national 
interests. 

The chief advantage of such a system is that it enables the house 
to deal with a far greater number of subjects than could be otherwise 
dealt with, and thus makes possible the dispatch of a vast amount 
of work, especially in killing off worthless bills. 


COMMITTEES 


203 

in reality they are made by two committees on committees 
selected by a caucus of the members of each party, the 
recommendations of the two committees usually being 
accepted by the senate without debate. Both parties are 
represented on each committee, the dominant party, of 
course, being given a majority of the places. Thus on a 
committee of thirteen members, the majority party is 
usually represented by eight members and the minority 
by five; on a committee of seventeen, the numbers are 
eleven and six respectively, and so on. 

Formerly in the house of representatives, all the commit¬ 
tees were appointed by the speaker, a power which gave him 
great influence in shaping and determining the course of 
legislation, since he might constitute the committees with 
reference to their friendliness or unfriendliness toward leg¬ 
islative measures that were referred to them for investigation 
and report. In making committee assignments, however, 
the speaker was not entirely free to follow his own individ¬ 
ual preferences. Thus the tradition of the house required 
that he must take into consideration the claims of members 
whose service had been long and distinguished, while polit¬ 
ical gratitude led him to reward with desirable committee 
assignments those to whom he was especially indebted for 
his election as speaker. Seniority of committee service was 
also taken into account when the chairmanship of an im¬ 
portant committee became vacant, the next ranking mem¬ 
ber of the committee having a strong claim to be promoted 
to the vacancy. In 1911, however, the house then controlled 
by the Democrats, adopted a rule providing for the elec¬ 
tion of all standing committees by the house; thus making 
the method of choosing committees the same as in the 
senate. 

In the house, the chairmanship of every committee. 


204 ORGANIZATION AND PROCEDURE OF CONGRESS 

whether important or unimportant, is given to a member 
of the dominant party, and of course also a majority of the 
other places on the committee, the proportion between the 
representation of the two parties being about the same as 
on the senate committees. 

Introduction and Reference of Bills.^ —After the appoint¬ 
ment of the committees the house is ready for the transac¬ 
tion of legislative business. Bills are introduced by sending 
them, indorsed with the name of the introducer, to the 
presiding officer’s desk, where the fact of presentation is 
entered on the journal and the bill is given a number.^ 
Thus the first bill introduced at the beginning of a new 
Congress is designated as ‘‘S. i,” if presented in the senate, 
and ‘‘H. R. i,” if presented in the house of representatives. 

Reference to Committees .—The next step is to refer the 
bill to a committee for consideration, and in the meantime 
it is printed and placed on the desks of members. Refer- 

^ Private bills are delivered to the clerk instead of to the speaker. 
The distinction between a public bill and a private bill is that the 
former deals with matters of general interest to the public, while the 
latter deals with matters of interest to a single individual or a small 
class. An example of a public bill is one regulating commerce; an 
example of a private bill is one granting a pension to a particular 
individual, or settling a claim of a person against the government. 
A distinction is also made between a bill and a resolution. A bill 
deals with matters of a more fundamental and permanent character, 
while a resolution deals with matters of a more temporary and tran¬ 
sient nature. Resolutions are of two kinds: joint and concurrent. A 
joint resolution is passed like a bill and requires the approval of the 
President but is cast in slightly different form and is used for making 
small appropriations, the creation of commissions, proposal of amend¬ 
ments to the Constitution, resolutions to admit new states, ordering 
of printing, and the like. A concurrent resolution is used for express¬ 
ing the opinion of Congress on some question of interest to that body 
alone and is not submitted to the President for his approval. 


INTRODUCTION AND REFERENCE OF BILLS 


205 


ence to the appropriate committee is usually made by the 
presiding officer, though the house may direct that it shall 
be referred to a particular committee. 

Some idea of the mass of legislative projects referred to 
the committees may be gained from the fact that in the 
sixtieth Congress 27,114 bills and resolutions were intro¬ 
duced into the two houses, and that of these, 7,839 were 
reported by the committees to which they were referred. 
We have here a good illustration of the necessity of the 
committee system, since it would have been a physical 
impossibility for either house as a whole to have considered 
even shghtly so many bills. The committees sift out of 
the mass of proposed legislation such measures as they 
think worthy of enacting into law, and report their rec¬ 
ommendations. 

Committee Hearings .—Committees charged with the con¬ 
sideration of important bills frequently hold public hearings 
at which interested parties may appear and present argu¬ 
ments for and against the measures under consideration. 
Thus the ways and means committee of the house in 1909 
held public hearings at Washington for many weeks on 
the tariff bill, and scores of persons appeared to advocate 
lower or higher rates on various articles on which duties 
were to be imposed. Frequently members who introduce 
bills appear before committees and urge favorable action. 
The more important committees in each house have a 
regular day in each week for meeting, and a few of those in 
the house of representatives meet twice a week. Most of 
the committees, however, have no regular meeting day, 
being called together by their chairmen as occasion requires. 

Forms of Committee Action .—The committee to which a 
bill is referred may pursue any one of the following courses: 
(i) It may report the bill back to the house with a recom- 


2o6 organization and procedure of congress 

mendation that it be passed; (2) it may amend the bill 
and recommend that it be passed as amended; (3) it may 
throw the bill aside and report an entirely new one in its 
place; (4) it may report the bill unfavorably with a recom¬ 
mendation that it do not pass; (5) it may ^‘pigeonhole” 
the bill, that is, take no action on it at all, or report it so 
late in the session that no opportunity is allowed for its 
consideration. The latter method of disposal, sometimes 
called “smothering,” is the fate that awaits the great ma¬ 
jority of bills introduced into Congress. The “ smothering ” 
of bills became the subject of so much complaint among 
members recently that the rules were amended so as to 
allow members to demand that their bills be reported to 
the house for consideration. The house, of course, may at 
any time instruct a committee to report a bill for its action, 
but this is rarely done. 

The report to the house is usually made by the chairman 
of the committee, or some one designated by him. Not 
infrequently the minority members of the committee also 
make a report opposing the recommendation of the ma¬ 
jority. The committee system of legislation is so thor¬ 
oughly established in Congress that a bill favorably reported 
stands an excellent chance of being passed, while one ad¬ 
versely reported hardly ever passes. 

Rules of Procedure.^—The Constitution provides that 
each house may frame its own rules of procedure, though 
it requires certain things to be done in the interest of pub¬ 
licity and to insure a reasonable degree of careful delibera¬ 
tion. Thus each house is required to keep and publish a 
journal which must show how motions are disposed of and 
the vote for and against measures voted on. It also requires 
that on demand of one fifth of the members present the 
yeas and nays upon a measure shall be entered upon the 


RULES OF PROCEDURE 


207 


journal. The purpose of this provision is to enable a small 
number of members to put the house on record so that the 
people may know how their representatives have voted on 
important measures. 

Filibustering. —This requirement serves a useful purpose, 
but it is sometimes taken advantage of by the minority to 
obstruct and delay legislative proceedings. Thus a member 
may move to adjourn or to take a recess and ask that the 
roll be called and the yeas and nays on the question be 
entered upon the journal. If the ‘‘filibustering” member 
is able to get one fifth of his colleagues to join him in the 
demand, the roll must be called,—a proceeding which re¬ 
quires considerable time,—and the process may be re¬ 
peated indefinitely, to the hindrance of the business of the 
house. 

The Rules of the House of Representatives have evolved 
gradually out of the experience of the house during its 
long existence, and have come to be so complex and elab¬ 
orate that they are really understood by only a few of 
the members, principally those who have had long experi¬ 
ence in administering them. They have been revised from 
time to time, but except in a few particulars they are es¬ 
sentially what they were in 1880. They prescribe a certain 
order of business for each day’s work, which, however, may 
be departed from by unanimous consent of all the mem¬ 
bers or by the adoption of a “special order” reported by 
the committee on rules. 

Committee of the Whole. —Revenue and appropriation 
bills are considered by the house of representatives in com¬ 
mittee of the whole. When the house goes into committee 
of the whole, the speaker leaves the chair and calls some one 
else to preside in his place, and the presence of 100 members 
constitutes a quorum. Debate in committee of the whole 


2o8 organization AND PROCEDURE OF CONGRESS 


is conducted rather informally, and greater freedom of dis¬ 
cussion is allowed. It is when in committee of the whole 
that many of the lengthy speeches printed in the Congres¬ 
sional Record are supposed to be delivered. In reality, 
however, only a small portion of these speeches are actually 
delivered, for members after addressing the house a few 
minutes often secure leave to print the remainder of their 
remarks. Under this leave, members frequently print long 
speeches which have little or no relation to the subject 
under consideration but are intended for campaign pur¬ 
poses or for effect upon their constituents. They are then 
franked through the mails to the voters throughout the 
district which the member represents. 

If the bill is a private bill, it is called up for consideration 
on Friday, which is private bill day. Most of the private 
bills are reported from the committees on claims and on 
pensions. Six or seven thousand such bills are passed by 
each Congress, and they constitute about nine tenths of 
the entire number enacted. 

Suspension of the Rules .—The regular order of business 
may be departed from at any time on the demand of privi¬ 
leged committees like those on ways and means, appropria¬ 
tions, elections, rules, and a few others which have a sort 
of right of way in the house, because of the urgent character 
of the matters with which they deal. Furthermore, by 
unanimous consent, often granted, a particular member is 
allowed to bring up a bill for consideration outside the reg¬ 
ular order. Finally, on two Mondays in every month and 
during the last six days of the session, the rules may be sus¬ 
pended by a two-thirds vote and measures to which there 
is little objection may be quickly passed and thus the busi¬ 
ness of the house expedited. 

The Speaker and the Committee on Rules. —No discus- 


THE SPEAKER AND THE COMMITTEE ON RULES 209 

sion of the procedure of the house of representatives would 
be adequate without a consideration of the part played by 
the speaker and the committee on rules in determining the 
course and character of legislation. 

The English Speaker .—The speakership is an ancient 
office inherited from England, where it originated in the 
fourteenth century, and is an outgrowth of the practical 
necessities of legislative procedure. The American speaker- 
ship, however, differs widely from its English prototype. 
The speaker of the House of Commons has no such power 
in shaping legislation and controlling debate as does the 
American speaker. He is in fact little more than a modera¬ 
tor with power to put motions, state questions, and preserve 
order and decorum in debate. He is entirely impartial, 
with no party prejudices. 

Powers of the American Speaker .—The American speaker, 
on the contrary, is not merely the presiding officer of the 
house, but he is an active party leader who seldom hesitates 
to give members of his own party every possible advan¬ 
tage in the course of debate. His right to appoint the com¬ 
mittees of the house until 19 ii gave him increased power 
over the shaping of legislation, because of the fact that 
the legislation of the house has come to be legislation 
largely by its committees. As has already been said, he 
gave the members of his own party all the chairmanships 
of committees, as well as a majority of the places on every 
committee, so that they easily controlled the work of the 
committees and hence of the house itself. 

Recognition.—yioxQOYQX, his power of recognition, that 
is, the power to grant or withhold the right of discussion, 
enables him to a large degree to prevent consideration of 
measures to which he is opposed and to cut off debate by 
members of the minority party. 

Govt. U. S.—14 


210 ORGANIZATION AND PROCEDURE OF CONGRESS 

Criticism of the Speaker .—This power of the speaker 
has been the subject of increasing complaint among the 
members of the house, especially by those of the minority, 
who assert that they are allowed little or no opportunity 
for debate. The demands for recognitions, however, are 
so numerous that the speaker cannot grant all the requests 
that are made. The speaker’s denial of the right of debate 
in many cases, together with the necessity of going to 
his room in advance in order to secure a promise of recog¬ 
nition led in 1910 to a revolt against the rules by 
a wing of the Republican party (the “insurgents”) who 
joined with the Democrats and brought about several 
amendments to the rules,’ one of which is designed to do 
away with the chief source of complaint in regard to the 
power of recognition. 

Committee on Rules .—Still another source of the speaker’s 
power until 1910 was his control of the committee on rules. 
In the beginning this committee was charged mainly with 
reporting upon desirable changes in the rules of the house, 
but gradually it was vested with the power of determining 
the order of procedure and to a large extent of directing 
what measures should be considered, and when. The com¬ 
mittee consisted of five members, two from the majority, 
two from the minority, and the speaker, who was the fifth 
member. The speaker appointed his four associates on 
the committee and thereby controlled its decisions. If he 
wished at any time to have the house take up a bill at the 
bottom of the calendar instead of one at the top, or in any 
other respect depart from the established order of procedure, 
he could call the committee together (it was the one com¬ 
mittee that had the right to meet when the house was in 
session) and have it report what was called’a“ special order,” 
to that effect—a report which the house usually adopted. 


THE SPEAKER AND THE COMMITTEE ON RULES 2ii 

The opposition to the power of this committee and more 
especially to its domination by the speaker was one of the 
causes of the revolt on the part of the “insurgent” Repubh- 
cans referred to above. With the aid of the Democrats 
they passed a rule depriving the speaker of membership on 
the committee, increasing its size from five to ten, and tak¬ 
ing the appointment of the committee out of his hands. 
Hereafter, it is to be elected by the house, and will be, it is 
asserted, a more representative committee. 

Final Stages of Procedure. —The rules of the house of 
representatives restrict the time which may be occupied 
by any member in debating a measure to one hour, and 
this cannot be exceeded except by unanimous consent. If 
he chooses, he may yield a portion of his time to some other 
member. The chairman who reports the bill usually opens 
the discussion. He is followed by the ranking member 
of the minority on the committee, and these are followed 
by other members of the committee in their turn. 

The Previous Question .—After the discussion has pro¬ 
ceeded for a time, debate may be terminated and the house 
brought to a vote by means of the previous question, which 
is moved in the form, “Shall the main question now be 
put? ” When ordered by the house it ends debate and brings 
the house directly to a vote. This is an effective method 
for putting an end to useless discussion of a measure and 
taking the sense of the house on its passage. It is a common 
form of procedure in legislative bodies, though it is not a 
part of the procedure of the senate. 

Voting on Bills .—Questions on the passage of bills are 
put by the speaker as follows: “As many as are in favor 
say ay^”; “As many as are opposed say no^^, the speaker 
determining the result by the sound of the voices. If there 
is a doubt as to which side has prevailed, a “division” is 


212 ORGANIZATION AND PROCEDURE OF CONGRESS 

called for, in which case those in favor rise and are counted, 
after which those who are opposed rise and are counted. 
If there is still doubt as to the result, “tellers” may be 
appointed to determine the vote, in which case those in 
favor of the measure file between the two tellers, who 
make a careful count, after which those opposed pass be¬ 
tween them and are similarly counted. If one fifth of the 
members demand that a yea and nay vote be taken, the 
clerk must call the roll and record each member’s vote, and 
the result is published in the journal so that the way in 
which a member voted may be known to his constituents 
and all others who may be interested. 

Passage by the Second House .-—When a bill is passed by 
one house, it is signed by the presiding officer, after which 
it is transmitted to the other house, where it goes through 
practically the same stages of procedure as described above. 
If the bill is passed by the other house without amendment 
it is “enrolled,” after which it is ready for the signature 
of the President. If, however, a bill as passed by one house 
is amended by the other, it is customary to appoint a con¬ 
ference committee, consisting usually of three members 
from each house, to discuss the differences and suggest a 
basis of compromise. The committee usually recommends 
that each house recede from its position on certain points, 
and the result is reported to each house, which usually 
accepts the agreement and the bill is passed. Many im¬ 
portant bills are finally passed in this way, though occa¬ 
sionally the two houses fail to reach an agreement and the 
bill fails. 

Approval of the President .—When the bill is presented to 
the President he is allowed ten days to make up his mind 
as to whether be will sign or disapprove it. If he refuses 
to sign it, he usually returns it to the house in which it 


FINAL STAGES OF PROCEDURE 


213 


originated, with a statement of his objections, after which 
the house must proceed to reconsider it, and if it is passed 
by a two-thirds vote it is sent to the other chamber and if 
repassed by it by a two-thirds vote it becomes a law not¬ 
withstanding the veto of the President. But in such cases 
the yeas and nays must be entered on the journal of each 
house so that the record may show that the bill was properly 
passed. In case the President does not approve the bill 
and neglects to return it within ten days to the house in 
which it originated, it becomes law in the same manner as 
if he had signed it, unless Congress should adjourn in the 
meantime so that it cannot be returned, in which case it 
does not become law. As a large number of bills are usually 
sent to the President during the last ten days of the session, 
an opportunity is thus afforded him for defeating bills by 
neither signing nor vetoing them. This method of defeat¬ 
ing bills is popularly described by the term “pocket veto,” 
a procedure sometimes resorted to where the President does 
not approve a bill and yet does not wish to take the re¬ 
sponsibility for positively vetoing it. 

Procedure in the Senate. —In the senate, partly by reason 
of its small size, partly by reason of its permanence, and 
partly by reason of the tradition of senatorial courtesy, 
the procedure is somewhat different from that of the house 
of representatives. For example, the senate rules are per¬ 
manent, that is, they continue from one Congress to an¬ 
other and do not have to be adopted anew every two 
years. 

The President of the Senate is little more than a moderator; 
indeed, he may belong to a different political party from 
that which is in control of the chamber—a situation that 
never happens in the house. He does not appoint the com¬ 
mittees of the senate, and so has no power of predetermin- 


214 ORGANIZATION AND PROCEDURE OF CONGRESS 

ing the character of legislation. Moreover, he has no power 
to control debate through the power of recognition. The 
traditions of the senate require that he shall recognize the 
first senator who rises to speak, and that he shall treat the 
members of both parties impartially in according recogni¬ 
tion for purposes of debate. 

Unlimited Debate .—One of the usages of the senate is 
the right of unlimited debate. Owing to the small size of 
the senate, much greater freedom of discussion is possible 
than in the house of representatives, where there are more 
than four times as many members. Debate can also be 
conducted with much more ease and is much more effective, 
since the size of the hstll is smaller and members are not 
under the necessity of speaking at the top of their voices. 
While a member of the house can rarely get an opportunity 
to deliver a speech and then only for a few minutes, a sena¬ 
tor may speak as long as he pleases. Advantage of this 
privilege is frequently taken by senators to deliver long 
speeches, not so much to convince their colleagues, as to 
get their views before the country at large or to make an 
impression on their constituents at home. The privilege 
is also made use of occasionally near the close of a session 
for “filibustering” purposes. Thus a few senators with 
strong liings, large vocabularies, and a liberal supply of 
documents from which to read, may consume the time of 
the senate for weeks and prevent it from acting on measures 
to which they are opposed. Many times in our history a 
single senator has forced the senate to abandon the con¬ 
sideration of important measures, by threatening to con¬ 
sume the remaining time of the session by speech making. 
At a recent session of Congress a senator from Wisconsin 
in an effort to prevent action on a currency bill in the last 
days of the session, spoke continuously for more than seven- 


PROCEDURE IN THE SENATE 


215 


teen hours. Finally, it should be noted that the senate 
never resorts, as has been said, to the use of the “pre¬ 
vious question” for terminating prolonged and useless 
•discussion and bringing the senate to a vote on the measure 
under consideration. 

References.— Beard, American Government and Politics, ch. xiv. 
Bryce, The American Commonwealth (abridged edition), chs. xiii-xv. 
Hart, Actual Government, ch. xiv. Harrison, This Country of Ours, 
ch. iii. Reinsch, American Legislatures and Legislative Methods, 
ch. i. 

Documentary and Illustrative Material.—i. The Congressional 
Directory. 2. The House and Senate Rules. 3. Precedents of the 
House of Representatives, published as a public document in 1909. 

4. The Congressional Record. 5. Specimen copies of bills and resolu¬ 
tions. 6. The last annual message of the President. 7. Copies of 
committee reports. 8. Veto messages of the President. 9. Diagrams 
of the house and senate chambers. 

Research Questions 

1. Why is it necessary to have rules of procedure in legislative 
bodies? 

2. For what purpose does the Constitution require each house to 
keep a journal of its proceedings? 

3. Which do you think the better practice, the American rule, by 
which each house of Congress settles election contests of its own 
members, or the English rule, which places that power in the hands 
of the courts? 

4. What is the reason for allowing a small number of members of 
each house to compel the attendance of absent members? 

5. Under what conditions may each house punish outsiders? 

6. What is your opinion of the English rule which allows forty 
members out of a total of six hundred and seventy members to con¬ 
stitute a quorum? 

7. Why should senators and representatives be privileged from 
arrest for any but serious offenses? 

8. What are the principal differences between the rules of pro¬ 
cedure of the senate and the house of representatives? 


2i6 organization and procedure of congress 


9. Do you think it would be a wise provision to permit the members 
of the cabinet to occupy seats in Congress without the right to vote? 

10. Trace a bill through Congress, showing the various stages 
through which it must pass before becoming a law. 

11. Of what committees is your representative a member? Is he 
chairman of any committee? 

12. Do you think the minority party should be given a larger repre¬ 
sentation on the committees of Congress and larger privileges of de¬ 
bate? 

13. Give the names of the five most distinguished speakers of the 
house of representatives since 1789. 

14. Why is debate more effective in the senate than in the house of 
representatives? 

15. Which of the two houses exerts the greater influence in deter¬ 
mining national legislation? Give your reasons. 

16. What are some of the so-called “usurped” powers now exer¬ 
cised by the senate? 




CHAPTER XII 


FEDERAL FINANCE, TAXATION, AND MONEY 

The National Taxing Power.—The lack of the power of 
Congress to levy taxes was, as we have seen, one of the chief 
weaknesses of the Articles of Confederation, voluntary 
contributions by the states being the chief source of revenue 
for the national government. When, therefore, the framers 
of the Constitution came to deal with this subject, they 
wisely provided that Congress should have power to levy 
and collect its own revenues. The power conferred is al¬ 
most absolute, the only limitations being that no duties 
shall be levied upon exports; that excises and duties levied 
on imports shall be uniform throughout the United States, 
that is, they shall be the same in amount on a given article 
everywhere; and that where direct taxes are levied, they 
shall be apportioned among the states on the basis of 
population. 

Forms of Federal Taxes.—The two general forms of 
taxes recognized by the Constitution are direct and in¬ 
direct taxes. The only direct taxes, in the sense of the 
Constitution of the United States, are poll taxes, and 
taxes on real or personal property, including taxes on the 
income from real or personal property, all of which are re¬ 
quired to be apportioned among the states on the basis of 
population, whenever they are levied. 

On account of the obvious injustice of levying a tax on 
217 


2i8 federal finance, taxation, and money 

the states on the basis of population, inasmuch as there 
might easily be twice as much property in one state as 
in another having the same population, this method has 
fallen into general disuse. Indeed, it has been resorted to 
by Congress only five times in our history, and then only 
for very short periods in each case. It does not seem likely 
that this method of federal taxation will ever again be 
resorted to. 

Since the Civil War the two principal sources of federal 
revenue have been duties on imports, and internal revenue, 
or excise taxes, on certain articles produced in this country. 

Customs Duties.— Specific and Ad Valorem. —Customs 
duties are taxes levied on articles imported into the United 
States from abroad. They are of two kinds, specific and 
ad valorem. Specific duties are those levied on the articles 
according to their weight or measurement without regard 
to their value. Thus a duty of one and a half cents a pound 
on imported tin plate, or one dollar a barrel on beer, or 
ten cents a yard on silk would be specific. An ad valorem 
tax is one levied with reference to the value of the article. 
Thus a duty of 50 per cent on the value of imported woolen 
goods is an example of an ad valorem duty. Sometimes 
both forms of duty are levied on the same article. 

In favor of the specific duty is the ease of collection, since 
the article has only to be weighed or measured and then 
assessed. But it is often inadequate, since one yard of cloth 
or one, gallon of wine may be many times more valuable 
than another, and so with many other articles. One practi¬ 
cal objection to the ad valorem method is the opportunity 
which is afforded for fraud in the matter of valuation, since 
in many cases it is difficult to ascertain the real value of the 
article taxed. 

The Protective Tarifif. —From the beginning of our exist- 


CUSTOMS DUTIES 


2ig 

ence as a nation, reliance upon customs duties as the chief 
source of revenue has been a part of our established policy. 
In 1910 the receipts from this source were $333,683,445,— 
about half of the entire ordinary income of the national 
government. Great diversity of opinion, however, has 
existed in regard to what articles should be taxed and the 
amount that should be imposed. The Republican party 
has always insisted upon a tariff not only for the purposes 
of revenue but also for protection to American industries 
and American labor against the cheap labor of the Old 
World. The Democratic party, oh the other hand, has gen¬ 
erally opposed the protective feature and insisted upon a 
tariff primarily for revenue. 

T/ie Preparation of a Tariff Bill devolves upon the ways 
and means committee of the house of representatives, where 
all revenue bills must originate. ^ Owing to the great variety 
of interests that must be harmonized and the increasing 
number of articles subject to taxation, the preparation of 
a bill which is fair and just to all is an exceedingly difficult 
task. 

The Maximum and Minimum Principle .—In 1909 Con¬ 
gress adopted for the first time the maximum and minimum 
principle for fixing tariff rates. The law provides for a 
maximum and a minimum rate on many articles and au¬ 
thorizes the President to apply the minimum rate to goods 
imported from countries which extend the same concession 

1 The senate may not initiate a revenue measure, but it exercises 
fully its right to amend bills sent to it by the house. Thus the tariff 
bill of 1894 as passed by the house was amended by the senate in 
nearly a thousand particulars. Again, the tariff bill of 1909 was so 
altered by the senate after it came from the house that it was in 
many respects a new bill, and the differences between the two houses 
were settled by a conference committee. 


2 20 FEDERAL FINANCE, TAXATION, AND MONEY 

to articles imported by their citizens from the United States, 
and to apply the maximum rate to others. 

Reciprocity Treaties .—At various times in the past rec¬ 
iprocity treaties have been negotiated with foreign coun¬ 
tries by which it was provided that lower rates should be 
levied on articles imported from such countries in return 
for reciprocal concessions of a similar kind from them; or 
that there should be free admission of articles by one coun¬ 
try from the other. 

Collection of Customs Duties.—The collection of the 
customs duties is part of the work of the treasury depart¬ 
ment. The country is divided into some 120 collection 
districts, in each of which there are one or more ports of 
entry and customhouses at which all imported goods must 
be landed.^ In each district there are a collector and a corps 
of appraisers, weighers, gaugers, naval officers, surveyors, 
and the like. 

By far the most important port of entry in the United 
States is the city of New York, where the aggregate receipts 
for the year 1910 were two thirds of the entire amount 
received from customs duties in the United States. A 
goodly number of the collection districts, however, are 
unimportant, and in some instances the expenses of adminis¬ 
tration exceed the receipts. Thus the receipts of the George¬ 
town (S. C.) district in 1910 were only $49.38, while the 
expenses were $265; the receipts of the Rock Island (Ill.) 
district were $51.79 and the expenses $660; the receipts 
of the Saco (Me.) district were $9.08 and the expenses 
$753.92. The secretary of the treasury has advocated time 
and again the abolition of collection districts in which the 

^ There are also “ports of delivery,” usually in the larger inland 
cities, to which imports may be shipped directly from abroad pro¬ 
vided they have been entered at a port of entry. 


COLLECTION OF CUSTOMS DUTIES 


221 


expenses of administration exceed the receipts, but as yet 
Congress has declined to take action on the matter. 

When goods are purchased abroad to be imported into 
the United States, the importer files with the United States 
consul at the foreign port from which they are to be exported 
an invoice containing a list of the goods and a statement 
of their value at the place where manufactured or pro¬ 
duced. The consul certifies to the correctness of the in¬ 
voice and sends a copy to the collector of the port at which 
the goods are to be landed. 

Appraisals .—Upon arrival in the United States, the 
cargo is examined by the customs officers to see that it 
corresponds with the description contained in the invoice. 
If it is found that the goods are undervalued the value 
will be raised by the appraiser. If there is evidence of 
fraud, the goods will be confiscated or a heavy fine imposed 
on the importer.^ 

There is a general board of appraisers to which appeals 
may be taken by the importer on questions of valuation, 
and recently there has been created a United States court of 
customs appeals for the determination of various questions 
arising in the administration of the tariff laws. 

Internal Revenue Taxes. —The second important source 
of federal income is excise taxes, or what are popularly 
known as internal revenue duties, that is, taxes on com¬ 
modities produced in the United States. 

The Receipts from internal revenue taxes as compared 

^ If the importer for any reason does not desire to remove his goods 
immediately and pay the duty thereon, he may store them in a govern¬ 
ment warehouse by giving a bond for double the amount of their 
value. He may then withdraw them at any time within a year upon 
the payment of the duties. If they are reexported the payment of 
duties is not required. 


222 FEDERAL FINANCE, TAXATION, AND MONEY 

with those from customs duties were inconsiderable before 
the Civil War. In 1862, however, Congress passed a com¬ 
prehensive internal revenue law which increased the tax 
on liquors and levied a tax on tobacco, besides license taxes 
on various trades and occupations. So many articles were 
taxed that the revenue from this source in 1866 amounted 
to more than' $309,000,000, the largest sum ever collected 
in one year from internal revenue taxes. The following 
table contains a list of articles now taxed under the internal 
revenue laws, not including the Corporation tax described 
below, and the amount of the tax received from each article 


during the year 1910: 

Distilled spirits. $148,029,311 

Manufactured tobacco.. 58,118,457 

Fermented liquors. 60,5 7 2,2 88 

Oleomargarine. 1,099,502 

Filled cheese. 2,847 

Mixed flour. 3,051 

Adulterated butter. 37,350 

Process or renovated butter. 121,554 

Miscellaneous. 1,012,073 


Total. $268,996,433 


It will be seen that by far the larger part of the receipts 
from this source are derived from the tax on liquor and 
tobacco. 

Collection of Internal Revenue Taxes.—For conven¬ 
ience in collecting internal revenue taxes, the country is 
divided into some sixty districts, not by act of Congress as 
is the case with customs districts, but by the order of the 
President. Sometimes several states are grouped into one 
district; sometimes a state is divided into several districts. 
Thus there are four districts in Illinois, six in New York, and 
five in Kentucky. In each district there is a collector who 













COLLECTION OF INTERNAL REVENUE TAXES 223 

acts under the supervision of the United States Internal 
Revenue Commissioner. The collection of internal revenue 
taxes is a much more simple task than the collection of cus¬ 
toms duties, and is done for the most part by the sale of 
stamps to the manufacturer, who is required to affix them on 
the articles taxed. In assessing the tax on most articles their 
value is not taken into consideration, and hence there is less 
opportunity for arbitrary action on the part of the govern¬ 
ment officials and of course less likelihood of controversy, 
than is the case with the administration of the customs laws. 
As the larger proportion of internal revenue taxes are paid 
by the manufacturers of liquor, distilleries and breweries 
are kept under the close surveillance of the government to 
avoid the perpetration of frauds on the revenue laws. 

Other Sources of Federal Revenue.—Besides the receipts 
obtained from tariff duties and internal revenue taxes, 
there are a number of other less important sources of reve¬ 
nue such as those from the sale of public land, the tax on 
national banks, fines and penalties for violations of the 
laws of the United States, profits on coinage, naturalization, 
immigration, patent office and other fees, etc. 

Income Taxes .—In 1862, Congress levied for the first 
time -a tax on incomes, the rate varying from five to ten 
per cent according to the amount of the income, all incomes 
below $600 being exempt from the tax. In 1872, the law 
was repealed; but a demand for reviying this method of 
taxation gradually increased, and it came to be a standing 
part of the national platform of the Democratic party. 
Accordingly when the Democrats got control of Congress 
in 1894, they enacted a law providing that all incomes in 
excess of $4,000 a year should be taxed at the rate of two 
per cent on the amount in excess of that figure. Shordy 
after the law went into effect, however, the Supreme Court, 


224 FEDERAL FINANCE, TAXATION, AND MONEY 

overruling its former decisions, decided, by a vote of five 
to four, that the law was unconstitutional, mainly on the 
ground that a tax on income from property was a direct 
tax in the sense of the Constitution, and not having been 
apportioned among the states according to their populations 
was null and void. The sums collected under the law were 
accordingly returned to the persons from whom they were 
collected. Sentiment in favor of such a tax, however, has 
steadily grown, and the Sixty-first Congress (1909), in order 
to remove the constitutional impediment, proposed an 
amendment allowing Congress to levy taxes on incomes 
without the necessity of apportioning the amount among 
the states on the basis of population. The amendment is 
now before the legislatures of the several states. If it be¬ 
comes a part of the Constitution, a new and important 
source of revenue will be provided, one which is made use 
of very extensively by the governments of foreign countries, 
notably that of Great Britain. 

The New Corporation Tax .—Congress in 1909 passed a 
law imposing a tax on corporations, joint-stock companies, 
and associations, to the extent of one per cent on the net 
income of each in excess of $5,000 a year. In the year 1910 
this tax yielded nearly $21,000,000. 

Inheritance Taxes .—During the Civil War and the war 
with Spain, Congress levied a tax on inheritances, and the 
permanent adoption of this form of taxation was strongly 
recommended by President Roosevelt in his annual mes¬ 
sages, but owing largely to the fact that many of the states 
have passed laws of this kind, the idea has never commended 
itself to Congress. 

Deposit of United States Funds.—The taxes collected 
by the national government, together with its other funds, 
are kept partly in the treasury and partly in the nine sub- 


DEPOSIT OF UNITED STATES FUNDS 


225 

treasuries located at Baltimore, Boston, Chicago, Cin¬ 
cinnati, New Orleans, New York, Philadelphia, St. Louis, 
and San Francisco. In addition the secretary of the treas¬ 
ury is authorized to designate national banks as deposi¬ 
tories and to deposit certain of the funds therein. In times 
of financial stringency or threatened crises, this authority 
may be used by the secretary to relieve the money market, 
by distributing the public funds among the government 
depositories in the important money centers. 

Federal Appropriations and Expenditures.—Having stud¬ 
ied the sources of federal revenues, we come now to the 
subject of expenditures. Revenue bills are prepared, as 
we have seen, by the ways and means committee of the 
house of representatives. Earlier in our history, the appro¬ 
priations of Congress were embodied in a single bill prepared 
by the committee on appropriations, but as the operations 
of the government expanded and the expenditures in¬ 
creased, the appropriations came to be embodied in a num¬ 
ber of bills prepared by at least a dozen different committees. 
The committee on appropriations now prepares the legis¬ 
lative, executive, and judicial appropriation bill, the sundry 
civil bill, and a half dozen others. The agricultural bill 
is prepared by the agricultural committee, the army bill 
by the committee on military affairs, the naval bill by the 
naval committee, the diplomatic and consular bill by the 
committee on foreign affairs, the post office bill by the 
committee on post offices and post roads, and the Indian 
bill by the committee on Indian affairs. 

The growth of national expenditures has been one of the 
marvels of our economic history. In 1791 the total dis¬ 
bursements aggregated less than $4,000,000; in 1910 they 
exceeded $721,000,000. 

The National Debt.—Whenever the revenues of the 
Govt. U. S.—15 


2 26 FEDERAL FINANCE, TAXATION, AND MONEY 

government are insufficient to pay its expenses recourse 
must be had to increased taxes or loans. In time of peace 
the ordinary revenues ought to be sufficient to meet ex¬ 
penses, but when extraordinary expenses must be incurred 
as is the case when war breaks out, or foreign terri¬ 
tory is purchased, or some great public work is to be 
constructed such as the digging of the Panama Canal, the 
government must have recourse to the borrowing power. 
The Constitution of the United States expressly confers 
upon Congress the power to borrow money on the credit 
of the United States, and no limitations whatever are placed 
on the exercise of the power, such as are generally imposed 
on state legislatures by the state constitutions. 

United States Bonds .—The usual mode by which the 
government borrows money is by the issue of its bonds, 
obligations similar in most respects to promissory notes 
made by individuals. A government bond is simply a 
promise to pay a certain sum at a particular time and with 
interest at a certain rate. The bonds issued by the United 
States government are of two kinds: ‘‘registered” and “cou¬ 
pon” bonds. A registered bond is made out to the person 
who purchases it; a record is kept of it at the treasury de¬ 
partment, and when it is transferred to another person the 
record must be changed so as to show the new owner. 

The advantage of such a bond is that if it is accidentally 
destroyed or lost the owner suffers no loss. The chief dis¬ 
advantage is the difficulty in transferring it. A coupon 
bond is one which has interest coupons attached to it, 
which may be clipped off and presented to the treasury for 
payment as the interest becomes due. The government 
keeps no record of the owner and it may be transferred 
as any other personal property. If a coupon bond is lost 
or destroyed, however, the owner cannot collect the amount 


THE NATIONAL DEBT 


227 

of the bond. United States bonds are issued in various 
denominations and for periods of time which vary widely. 
Usually bonds are sold to the highest bidder, but occa¬ 
sionally they are disposed of by negotiation with capitalists 
on the best terms that can be secured. During President 
Cleveland’s administration $262,000,000 of bonds were 
sold to New York capitalists in this way. 

Rate of Interest .—The rate of interest which United States 
bonds pay has varied from time to time. The Revolu¬ 
tionary War debt bore six per cent, and so did most of the 
civil war bonds. Since the Civil War, however, the rate 
at which the government has been able to borrow has 
steadily declined, largely because of the desire of national 
banks to secure United States bonds (page 232). The rate 
of interest on bonds now outstanding ranges from two to 
five per cent. About half the interest-bearing debt draws 
two per cent, and the larger part of the remainder, four 
per cent. 

Growth of the National Debt .—When the Constitution 
went into effect, the national debt, including the w’-ar debts 
of the states which were assumed by the national govern¬ 
ment, amounted to about $127,000,000; but by 1836 the 
debt was extinguished and there was a surplus in the 
treasury which was distributed among the states. The 
enormous expenses of the Civil War, however, had to be 
met largely by loans, and at the close of the conflict (1866) 
the interest-bearing debt was more than $2,000,000,009. 
During the next twenty years the debt was reduced to 
about $600,000,000, but this amount was increased between 
1895 and 1899 to about $945,000,000 on account of bond 
issues to replenish the gold reserve and to meet a portion 
of the expenses of the war with Spain. On June 30, 1910, 
the interest-bearing debt stood at $913,317,490. 


228 FEDERAL FINANCE, TAXATION, AND MONEY 

In addition to this there is a non-interest-bearing debt of 
$381,000,000, of which $346,681,016 consists of treasury 
notes issued during the Civil War, and popularly known as 
“greenbacks” from their color; and nearly $4,000,000 of 
what are called Sherman treasury notes, which were issued 
under an act passed in 1890. 

The Monetary System.—The coining of money is now 
regarded everywhere as a proper if not a necessary function 
of government. Under the Articles of Confederation, this 
power was possessed by the states as well as by Congress, 
though in fact it was exercised by neither. The coin of 
other countries, particularly of Spain, circulated freely 
throughout the United States, and was used as the circulat¬ 
ing medium. The framers of the Constitution decided 
that the most effective way of securing a uniform system 
of money would be to place the whole matter under the 
control of the national government, and so Congress alone 
was given the power of coinage. At the same time, remem¬ 
bering how the states had before 1789 flooded the country 
•with paper money which in some instances had become 
worthless, the framers of the Constitution wisely decided 
to prohibit them from issuing bills of credit, that is, paper 
designed to circulate as money. Likewise they were for¬ 
bidden to make anything but gold and silver coin a legal 
tender in the payment of debts. 

The Acts of lygz and 18^4 .—As soon as the new govern¬ 
ment under the Constitution had gone into operation, steps 
were taken to provide a system of metallic currency. In 
1792, an act was passed providing for the establishment 
of a mint at Philadelphia and for the striking of both gold 
and silver coins. ^ The gold coins were to be the double 

1 Later mints were established at Denver, San Francisco, and New 
Orleans. Assay offices for refining and determining the purity of 


THE MONETARY SYSTEAI 


229 

eagle, the eagle, the half eagle, and the quarter eagle; the 
silver coins were to be the dollar, the half dollar, the quarter, 
the dime, and the half dimed As the market value of a 
given quantity of gold bullion was then about fifteen times 
that of silver, the weight of the silver coins was made fifteen 
times that of the corresponding gold coins. But as the value 
of gold bullion presently began to increase in comparison 
with silver, it was necessary to readjust the ratio so as to 
keep both in circulation, and so in 1834 the weight of gold 
coins was reduced and the ratio made sixteen to one. 

Demonetization of the Silver Dollar .—But soon the in¬ 
crease in the supply of gold again disturbed the ratio, mak¬ 
ing the silver coins worth more as metal than as money; 
and as the difficulty of keeping up the adjustment seemed 
insuperable. Congress decided to abandon the attempt and 
so in 1873 the silver dollar was practically ‘‘demonetized,’’ 
that is, was dropped from the list of coins, and other silver 
coins were made subsidiary, that is, their weight was de¬ 
creased so that the metal in them was worth less than their 
face value, and they were made legal tender for small sums 
only.^ 

Later Acts .—The opposition to the demonetization of the 
silver dollar, however, became so great that it was restored 

bullion have been established at New York, St. Louis, Deadwood, 
Helena, Boise, Carson City, Salt Lake, Seattle, and Charlotte, North 
Carolina. To give strength and hardness to gold and silver coins an 
alloy of copper equal to one tenth of their weight is added. 

1 In addition to the gold and silver coins mentioned above are 
the five cent piece (nickel) and the one cent piece (copper). 

^ At the present time all gold coins and the silver dollar are legal 
tender for all sums. The smaller coins, however, are legal tender for 
small sums only, the amount ranging from twenty-five cents in the 
case of the nickel and copper pieces to $10 in the case of the silver 


coins. 


230 FEDERAL FINANCE, TAXATION, AND MONEY 

by the act of 1878 and made full legal tender. But the free 
coinage of silver was not restored; the act required the 
government to purchase and coin not less than $2,000,000 
nor more than $5,000,000 worth of silver bullion per month. 
In the mean time the market value of silver had declined 
until the amount of silver in a silver dollar was worth less 
than eighty cents in gold, and it was believed that the act 
of 1878 by increasing the demand for silver would restore 
its market value. This, however, did not happen, and the 
market value of silver went on decreasing until at one time 
the amount of silver in a dollar was worth only about forty- 
six cents in gold. In 1890 Congress increased the use of 
silver by requiring the secretary of the treasury to purchase 
monthly four and one half million ounces of silver and pay 
for it with treasury notes which were redeemable in coin at 
the option of the secretary and which were to be canceled 
or destroyed when so redeemed. This act was repealed in 
1893, since which date the government has purchased very 
little silver bulhon for coinage purposes. 

Free Coinage.—In determining its coinage policy, the 
government might follow either of two methods: (i) It might 
coin any and all bullion that might be presented by its own¬ 
ers at the mints, or (2) it might purchase its own bullion 
and coin only so much as the necessities of trade or other 
considerations might require. The former policy is that of 
free coinage; it is also unhmited coinage since it involves the 
coinage of all bullion offered without limit. From the very 
first, the practice of the government in regard to gold has 
been that of free and unlimited coinage; that is, any owner 
of gold bullion may take it to a mint and have it coined 
without charge except for the cost of the alloy. Prior to 
1873, same policy was followed in regard to silver, thus 
maintaining in theory at least a bimetallic or double stand- 


FREE COINAGE 


231 

ard. In 1873, however, Congress abandoned the policy 
of free coinage of silver and adopted the single gold stand¬ 
ard. From then until now the government has coined no 
silver bullion for private owners. 

Paper Currency.—In addition to the metallic money 
described above there is a vast amount of paper currency 
in circulation in the United States. This currency may be 
classified under four different heads. 

Greenbacks. —First, there are the $346,681,016 of old 
United States notes or “greenbacks,” already described. 
They were issued during the Civil War, they bear no in¬ 
terest, and are redeemable in coin upon the demand of 
the holder. Since 1878 the practice of the government has 
been not to retire them as they are redeemed but to reissue 
them and keep them in circulation. 

Gold and Silver Certificates. —Second, there is a large 
amount of currency in the form of gold and silver certifi¬ 
cates. The law under which such currency is issued pro¬ 
vides that any owner of gold or silver coin may deposit it 
in the treasury and receive in exchange an equivalent 
amount of certificates. They are more convenient to 
handle than coin, and are equally valuable for paying 
debts and purchasing commodities. On the 30th of June, 
1910, the amount of gold certificates in circulation was 
$862,936,869; the amount of silver certificates, $489,117,000. 
These two forms of currency constitute nearly half of our 
entire stock of money in circulation. 

Sherman Treasury Notes .—A third form of paper money is 
the so-called Sherman treasury notes issued in pursuance 
of the act of 1890 already described. On June 30, 1910, 
there were $3,672,000 of them in circulation. The law 
declares that they shall be redeemed in coin, that is, either 
gold or silver, at the option of the government. To prevent 


232 FEDERAL FINANCE, TAXATION, AND MONEY 

the threatened depletion of the gold reserve ^ and provide 
the necessary gold with which to redeem the increasing 
issues of Sherman treasury notes, bond issues aggregating 
$262,000,000 were issued during the years 1894 and 1895. 
By the act of 1900 the policy of maintaining a single gold 
standard was definitely adopted by Congress, and it was 
provided that greenback notes, Sherman treasury notes, 
and other securities of the government should be redeem¬ 
able in gold. 

National Bank Notes .—The fourth class of paper money 
is national bank currency. A national bank, unlike other 
banks, not only receives deposits and makes loans and per¬ 
forms the other functions of banks, but also issues notes 
which circulate as money. In 1910 there were over 7,000 
national banks in the United States with an aggregate 
capital of $1,000,000,000 and with a total circulation of 
$685,000,000 of notes outstanding. Next to gold and 
silver certificates this constitutes the largest amount of 
paper money in existence, and the amount is rapidly in¬ 
creasing. 

The total amount of money of all kinds in circulation on 
June 30, 1910, amounted to $3,106,240,657, or a per capita 
circulation of $34.93. 

The National Bank System.—Any number of persons, 
not less than five, may organize a national bank, the amount 
of capital required depending upon the population of the 
town or city where the bank is located. The organizers 
must purchase and deposit with the government, bonds of 
the United States equal to one fourth of the capital of the 
bank. The comptroller of the currency then delivers to the 

^ The gold reserve is a sum of money set aside for the purpose of 
redeeming the old “greenbacks” or United States notes. An effort 
has always been made to keep the amount above $100,000,000. 


THE NATIONAL BANK SYSTEM 


233 


bank notes equal in amount to the par value of the bonds 
deposited. These notes when properly signed by the 
president and cashier of the bank may then be loaned by 
the bank or otherwise issued as currency, for though not 
a legal tender they are commonly used as money. It must 
also be remembered that the United States bonds deposited 
with the government remain the property of the bank and 
it receives the interest on them just as any other owner 
would. The bank therefore draws double interest from 
the money which it has invested in bonds: interest from the 
government on the bonds deposited with it, and interest 
on the notes from those to whom they have been loaned 
as money. 

Advantages of National Bank Currency .—If a national 
bank fails, depositors may lose their money just as de¬ 
positors of money in other banks may, but the holder of a 
national bank note does not, for whenever a bank is unable 
to redeem its notes, the comptroller of the currency may 
sell the bonds which it has on deposit with him, and with 
the proceeds redeem its notes. Hence a bank note is as safe 
as any other form of currency. Moreover, national banks 
are subject to frequent and careful examination by gov¬ 
ernment examiners, and failures among them occur with 
less frequency than among other banks. 


References.— Andrews, Manual of the Constitution, pp. 81-89, 
104-118. Beard, American Government and Politics, ch. xviii. 
Bryce, The American Commonwealth (abridged edition), ch. xvi. 
Harrison, This Country of Ours, pp. 58-65. Hart, Actual Govern¬ 
ment, chs. xxi-xxii. Hinsdale, American Government, secs. 341- 
373. Laughlin, Elements of Political Economy, chs. xxv-xxvii. 

Illustrative Material.—i. Copy of the present tariff law. 2. Speci¬ 
mens of various kinds of money in .circulation. 3. Copy of the last 
annual report of the Secretary of the Treasury. 


234 FEDERAL FINANCE, TAXATION, AND MONEY 


Research Questions 

1. What were the sources of national revenue during the period 
of the Confederation? 

2. Why has the imposition of direct taxes on the states not been 
resorted to with more frequency? 

3. What is your opinion of the proposed amendment authorizing 
Congress to levy taxes on incomes? Has your state ratified the amend¬ 
ment? 

4. What is your opinion of the new law levying taxes on corpora¬ 
tions? 

5. What is the amount paid by your state in the form of internal 
revenue taxes? How many internal revenue districts are there in 
3'-our state? 

6. Are there any ports of “entry” or “delivery” in your state? 
Any customhouses? If so, what is the amount collected by each? 
(See report of the secretary of the treasury.) 

7. Can you give the names of some articles now on the “free list”? 

Mention some articles on which, in your judgment, the tariff rate is 
too high. Mention some articles on which the tariff is levied according 
to the ad 'method; the specific method; both methods com¬ 

bined. (See copy of the tariff law.) 

8. Are there any countries now whose commodities are discrimi¬ 
nated against through the imposition of the maximum rate allowed 
by the tariff act? 

9. With what countries do we have reciprocity commercial trea¬ 
ties? In brief, what are the provisions of those treaties? 

10. Why is an internal revenue tax imposed on such articles as 
oleomargarine, filled cheese, and mixed flour? 

11. What is the present rate on tobacco, cigars, distilled spirits, 
and fermented spirits? 

12. What was the total amount of the appropriations of Congress 
at the last session? What were the largest items of expenditure? 

13. What is the present mint ratio between gold and silver? the 
market ratio? What is the actual weight of a silver dollar? What is 
Gresham’s law of coinage? 

14. Which countries have a bimetallic monetary system? Which 
a single silver standard? Which a single gold standard? What are 
the arguments for and against free coinage of silver? 


RESEARCH QUESTIONS 


235 


15. What would be the result of opening the mints to the free and 
unlimited coinage of silver? 

16. Compare the positions of the Democratic and Republican 
parties on the money question in 1896. 

17. Name the different kinds of paper money. 

18. What was the amount of the interest-bearing debt according 
to the last report of the secretary of the treasury? The amount of 
the non-interest-bearing debt? 

19. Whatdo'you understand by the terms “legal tender”? “fiat 
money”? “seigniorage”? “suspension of specie payments”? 

20. What is the penalty for counterfeiting the currency of the 
United States? 

[Answers to many of these questions may be found in the report of 
the secretary of the treasury which may be obtained gratis from the 
secretary.] 


CHAPTER XIII 


THE REGULATION OF COMMERCE 

The Power to Regulate Commerce.—Under the Articles 
of Confederation, as we have seen, Congress possessed no 
power to regulate commerce among the states or with 
foreign nations. That power remained entirely with the 
states. Each state accordingly made such regulations as 
it saw fit, without regard to the general welfare. It was this 
want of commercial power on the part of Congress that 
contributed as much as anything else perhaps to the down¬ 
fall of the Confederation. The Constitution as finally 
adopted gave Congress the exclusive power to regulate 
commerce among the states, with foreign countries, and 
with the Indian tribes, which were then treated somewhat 
as foreign nations for certain purposes. The only limitations 
placed on the power of Congress in this respect were that 
no duty should be levied on goods exported from any state; 
that no preference should be given by any regulation of 
commerce or revenue to the ports of one state over those 
of another; and that no vessels bound to or from one state 
should be obliged to enter, clear, or pay duties in another. 

Regulation of Foreign Commerce. In pursuance of the 
power to regulate commerce with foreign nations Congress 
has enacted a large amount of legislation relating to tonnage 
duties, duties on imports, quarantine, immigration, the 
importation of adulterated foods, wines, teas, and other 

236 


REGULATION OF FOREIGN COMMERCE 237 

food products, the conduct of navigation, the construction 
and inspection of ships carrying passengers, pilotage, clear¬ 
ances, the protection of shipping, the rights of seamen, the 
registration of vessels, life-saving appliances, the use of 
wireless telegraph apparatus, and the like. It was also 
in pursuance of this power that the Embargo Act was 
passed in 1807 and the Nonintercourse Act in 1809—both of 
which were in effect prohibitions rather than regulations 
of commerce. 

The Navigation Laws prescribe with great detail how 
vessels registered under the American flag shall be con¬ 
structed and equipped for the comfort and safety of their 
crews and passengers; how they shall be inspected; rules 
that shall be observed to avoid collisions, how signals shall 
be displayed, etc.; the forms of papers vessels must carry; 
how the wages of seamen shall be paid, the nature of their 
contracts, etc. 

The Tonnage Laws prescribe the rate of tonnage duties 
that shall be levied on vessels entering American ports. 
Tonnage duties, as the name indicates, are a form of taxa¬ 
tion calculated on the basis of the tonnage admeasurement 
of the vessel; they are levied on American as well as 
foreign ships, though the rate is higher on the latter than 
on the former. Sometim.es they have been higher on the 
vessels of some foreign countries than on those of others, 
in which case they are known as discriminating tonnage 
duties. Such discriminating duties are employed for the 
purpose of favoring the commerce of those nations which 
extend us commercial privileges and for shutting out or 
restricting that of nations which discriminate against our 
trade. In pursuance of the power to regulate foreign com¬ 
merce, Congress prohibits foreign vessels from engaging in 
the coasting trade, allows only American-built vessels to 


238 THE REGULATION OF COMMERCE 

register under the American flag, and permits only citizens 
of the United States to serve as masters on vessels registered 
under the American flag. 

Immigration .—By virtue of the commerce power Con¬ 
gress has enacted a series of immigration laws imposing 
restrictions on the coming of immigrants to our shores. 
For a long time immigration from Europe was encouraged 
rather than restricted, but within recent years so many 
undesirable persons have found their way to America that 
Congress has been led to pass various laws designed to shut 
out the worst of them and admit only the desirable ones. ^ 

First of all, the immigration laws exclude convicts, insane 
persons, paupers and those likely to become paupers, per¬ 
sons suffering with dangerous, loathsome, and contagious 
diseases; epileptics, persons afflicted with tuberculosis, 
idiots, feeble-minded persons, polygamists, anarchists, 
immoral persons, and others of this character. 

In the second place, what are known as alien contract 
laborers are prohibited from entering the United States, 
that is, persons who come under contract already entered 
into, to perform labor, whether skilled or unskilled. The 
law excluding this class was enacted in obedience to the 
demands of the union laborers of the United States, who 
did not wish to be subjected to competition with foreign 

1 According to the report of the commissioner general of immi¬ 
gration, nearly one million immigrants are annually coming to the 
United States. In 1907 the number was 1,285,349. For a long time 
the larger proportion of immigrants came from the countries of north¬ 
ern Europe, especially the British Isles, Germany, and the Scandi¬ 
navian countries. But in recent years the number who have come 
from these countries has fallen to a small proportion of the whole. 
The great majority of those who now find their way here are from 
Russia and countries of southern Europe: Italy, Hungary, and Tur¬ 
key. 


REGULATION OF FOREIGN COMMERCE 239 

laborers specially imported for the purpose. Certain classes 
of persons, however, such as actors, singers, teachers, lec¬ 
turers, and members of other professions are exempted from 
the operation of the law, and so are skilled laborers if do¬ 
mestic laborers of like kind are not available in the United 
States. 

A third group of excluded classes are Chinese laborers, 
the immigration of whom was first prohibited by an act 
of Congress passed in 1882, and later by treaty with the 
Chinese government. The law also provides for the depor¬ 
tation of Chinese found here in violation of the law. 

There is now a head tax of four dollars levied upon 
every immigrant who is admitted, and ability to read and 
write is also required by a very recent act. Persons whose 
steamship passage has been paid by others or who have 
been otherwise assisted to come are not allowed to enter. 
When an immigrant has been denied admission by the com¬ 
missioner of immigration at the port at which he has landed, 
he may take an appeal to a special board of inquiry. If 
the decision of this board is against him he may appeal 
to the United States commissioner general of immigration, 
and finally to the secretary of the department of com¬ 
merce and labor. If the final decision is against him, 
the steamship on which he sailed is required at its own ex¬ 
pense to transport him to the port from which he sailed. 

Quarantine .—In pursuance of the power to regulate for¬ 
eign commerce. Congress has enacted a volume of legis¬ 
lation in regard to quarantine and medical inspection of 
ships and their passengers coming from foreign ports. In 
most instances inspections are made by the United States 
consul at the port from which the vessel sails, and a bill 
of health is furnished the master of the vessel, but in some 
Asiatic and South American ports regular medical in- 


240 THE REGULATION OF COMMERCE 

spectors are stationed. At various ports along the coast line 
of the United States, national quarantine stations have 
been established at which inspections of incoming vessels 
are made and at which they may be detained if found to 
have on board persons suffering from dangerous contagious 
diseases. 

Pure Food .—Congress has also provided for the inspec¬ 
tion of foods imported from abroad. Whenever a vessel is 
found to have on board impure or adulterated foods, wines, 
or teas, it is forbidden to land the cargo or is allowed to land 
it only after certain conditions are complied with such as 
the change of labels to correspond with the actual contents 
of packages. In this way an attempt is made to protect the 
American consumer against impure and unwholesome food 
products shipped here from foreign ports. 

Interstate Commerce has been interpreted to include 
the carriage of passengers from one state to another; the 
transportation of commodities of whatsoever character, 
including lottery tickets, obscene literature, and any other 
objects which may be the subject of transportation; and 
the transmission of ideas or information by telegraph or 
telephone from a point in one state to a point in another. 
In short, interstate commerce as now interpreted means 
not only transportation and traffic in articles but intercourse 
and communication by any and all of the modern devices 
for transmitting thought, and the power to prescribe the 
conditions and restrictions under which such intercourse 
may be carried on across state lines belongs to Congress. 

^ Congress controls also the coasting trade between parts 
of the same state and the traffic on rivers which though 
wholly within a single state flow into the ocean or the 
Great Lakes and thus constitute highways of interstate or 
foreign commerce. 


INTERSTATE COMMERCE 


241 


Power Retained by the States .—Nevertheless it is often 
difficult in a particular case to draw the line between acts 
which regulate interstate commerce and acts which merely 
affect it without regulating it. The Supreme Court in a 
long line of decisions has held that the states not only have 
complete power of control over all commerce originating 
and ending within their limits but that they may also enact 
legislation for the protection of the public health, safety, 
good order, and morals of their people even when such 
legislation affects commerce among the states, the only 
restriction being that such legislation must be reasonable 
and must not amount to a direct interference with inter¬ 
state traffic. The right of the states in this respect is known 
as the police power —a power which is very extensive and 
of which they cannot be deprived by Congress. Thus they 
may enact quarantine and health laws forbidding the en¬ 
trance into their territory of diseased persons from other 
states or the importation of diseased live stock, provided 
such regulations are reasonable. In the same way they may 
prescribe the rate of speed of interstate trains running 
through their towns, may prohibit freight trains from run¬ 
ning on Sundays, may require railroads to provide gates at 
crossings, to elevate their tracks, to provide their cars with 
safety appliances, to cause engineers to be examined for 
color blindness, and the like. 

The Original Package Doctrine .—A state, however, can¬ 
not without the consent of Congress prohibit the importa¬ 
tion of liquor in original packages into its territory from 
other states although it may be a prohibition state. 

Likewise, the states cannot impose taxes on passengers 
passing through their territory bound for points in other 
states, or require interstate trains to stop at county seats, 
or impose taxes on telegraph messages sent to points in 
Govt. U. S. —16 


242 THE REGULATION OF COMMERCE 

other states, or on bills of lading of freight destined to 
points in other states, or on goods intended for exportation, 
and so on. 

Regulation of Interstate Railway Traffic.—For a long 
time Congress took no action toward regulating railway 
traffic among the states, thus leaving the railroads free to 
carry on their business as they pleased, regardless of the 
interest of the public whom they served. But with the 
enormous development of the railway system of the country 
gross evils began to creep in, in the form of excessive rates, 
discriminations, combinations for the suppression of com¬ 
petition, inadequate provision for the safety of passengers, 
etc., in consequence of which a widespread demand grew 
up for legislation bringing the railroads under govern¬ 
mental control. The outcome of this agitation was the 
interstate commerce act of 1887, the provisions of which 
have been amended and extended by several subsequent 
acts, notably the Elkins act of 1903, the railway rate law 
of 1906, and the interstate commerce law of 1910. 

Interstate Commerce Commission .—The law of 1887 
created an interstate commerce commission which now 
consists of seven members appointed by the President and 
paid a salary of $10,000 a year each, which commission has 
general supervision of the execution of the several acts 
mentioned above. It hears complaints against the rail¬ 
roads, makes investigations upon petition, and to this 
end may summon witnesses and compel the production 
of papers and records, and conduct hearings. If, after an 
investigation, it finds that the law is being violated by a 
railroad company, it may request the proper federal au¬ 
thorities to institute a prosecution of the offending company, 
and the law requires that such a prosecution shall be made. 
For a long time the commission had no power to fix rates. 


REGULATION OF INTERSTATE RAILWAY TRAFFIC 243 

but only the negative right to say that a given rate was 
unjust and unreasonable. But by the act of 1906 it was 
given the power, after a full hearing, to determine and pre¬ 
scribe just and reasonable maximum rates and charges, 
as well as to prescribe regulations for the conduct of rail¬ 
way traffic. 

The Laws Now in Force prescribe that all railway rates 
and charges for carrying freight and passengers must be 
just and reasonable; that no rebates, drawbacks, or special 
rates shall be granted to particular shippers; that no dis¬ 
criminations shall be made as to rates or service to cer¬ 
tain persons or places; that no free passes, with certain spec¬ 
ified exceptions, shall be granted; that no greater charges 
shall be made for a “short haul” than for a “long haul”; 
that no railroads shall be allowed to transport commodities 
which they are engaged in producing, with certain excep¬ 
tions; that competing railways shall not be allowed to pool 
their freight or earnings; that schedules showing rates, 
fares, and charges shall be published and kept open for 
inspection and cannot be changed except after thirty days’ 
notice to the commission; that all railroads shall keep their 
accounts according to a uniform system prescribed by the 
commission; and that they shall make annually to the 
commission a full and complete report of their business 
and earnings. 

An important extension of the interstate commerce act 
was made in 1906, when express and sleeping car companies, 
as well as pipe lines used for transporting oil from one state 
to another, were brought under the operation of the law 
and their business subjected to the same conditions and 
restrictions as those applying to railroads. By an act of 
1910 the power of the interstate commerce commission was 
Still further increased, the law regulating the control of 


244 


THE REGULATION OF COMMERCE 


the railways was strengthened, and a commerce court was 
provided to hear controversies between the railroads and 
the government and thus relieve both the interstate com¬ 
merce commission and the Supreme Court from the burden 
of hearing and deciding the numerous cases raised in the 
course of the administration of the laws governing railway 
traffic. 

Congress has also enacted laws requiring railroads engag¬ 
ing in interstate commerce to equip their cars with auto¬ 
matic couplers and other safety appliances. It has also 
legislated with regard to the liability of railway employers 
for injuries sustained by employees on interstate railroads, 
for the compensation of workingmen so injured, and for 
the arbitration of strikes by employees on railroads engaged 
in interstate commerce. 

Federal Anti-trust Legislation.—The commerce clause 
of the Constitution has also furnished the authority for 
some important congressional legislation against what are 
popularly known as ‘Trusts,” that is, combinations of 
corporations or business associations formed to avoid the 
wastes of competition and to secure economy of manage¬ 
ment. But the control of the supply of a commodity means 
the elimination of competition and usually the maintenance 
of high rates to the injury of consumers. For a long time 
the greater part of the business of the country was con¬ 
ducted by individuals, companies, or corporations, and 
the advantages of competition were preserved to the public, 
but in the course of the economic development of the coun¬ 
try, corporations began to consolidate for the reasons stated, 
with the result that the supply of many commodities came 
to bp controlled by single combinations. At first the states 
undertook to deal with the problem by passing anti-“ trust” 
laws, but the business of so many of the more powerful 


FEDERAL ANTI-TRUST LEGISLATION 


245 


organizations was interstate in fcharacter that state legis¬ 
lation was inadequate to deal with them. 

The Sherman Anti-'trust'’ Law. —Finally, in obedience to 
a widespread popular demand, Congress took action in 
1890 by passing what is popularly known as the Sherman 
anti-‘^trust” act to protect trade and commerce among the 
states against unlawful restraint and monopolies. This 
act declared that every contract, combination in the form 
of trust or otherwise, or conspiracy in restraint of trade or 
commerce among the states or with foreign nations was 
illegal,'and it prescribed appropriate penalties for viola¬ 
tions thereof. This law, however, applies only to ‘Trusts” 
which are in restraint of trade among the states or with 
foreign nations. It has no application to those whose ac¬ 
tivities are confined entirely within the boundaries of a 
single state. With such “trusts” the states alone have 
the power to deal, for it would not be a regulation of inter¬ 
state or foreign commerce for Congress to interfere with 
them. 

Trust” Prosecutions .—In pursuance of the act of 1890, 
prosecutions have been instituted in the federal courts 
against a large number of “trusts, ” and some of them have 
been broken up, but the larger number have escaped. Thus 
a combination among the railroads west of the Missouri 
River formed for the purpose of maintaining certain freight 
rates was dissolved, and so was a joint-traffic association 
among the railroads east of the Mississippi. In other cases 
competing railroads have been prevented from uniting for 
the purpose of fixing and maintaining rates, and in the 
famous Northern Securities case it was even held that the 
law prohibited the organization of a holding company for 
the purpose of controlling the majority of the stock of two 
competing railroads. 


246 THE REGULATION OF COMMERCE 

Federal Pure Food Legislation.—The commerce clause 
of the Constitution is also the source of some important 
legislation designed to protect the public against impure, 
unwholesome, and adulterated foods produced in the United 
States. We have already called attention to the legislation 
of Congress against the importation of impure foods, wines, 
and teas from abroad. Still more recently Congress passed 
an interstate pure food law prohibiting the transportation 
among the states and territories of any food products which 
are adulterated or which contain foreign substances not 
indicated in the labels. The law also provides for the fixing 
of a standard of pure foods and other products transported 
from one state to another or intended for interstate trans¬ 
portation, and provides that they must come up to the 
standard prescribed. 

The Meat Inspection Law .—To protect the public against 
unwholesome meat products, Congress enacted in 1891 a law 
which was strengthened in important particulars in 1906, 
providing for the inspection of slaughtering houses whose 
products are intended for interstate commerce. The law 
requires the registration of all establishments engaged in 
slaughtering animals the products of which are to be shipped 
into other states or are intended for export. Each is given 
a number, and federal inspectors are assigned to inspect 
the animals intended for slaughter, to inspect their car¬ 
casses in certain cases, and to see that the business of 
slaughtering is conducted under clean and wholesome con¬ 
ditions. Animals found suffering with certain diseases are 
not allowed to be slaughtered for food purposes, and meat 
discovered to be unwholesome must be rejected. Super¬ 
vision is also exercised over the processes of packing and 
canning, and there are detailed regulations in regard to 
labehng. 


RESEARCH QUESTIONS 247 

References. Andrews, Manual of the Constitution, pp. 89-95. 
Beard, American Government, ch. xix. Cooley, Principles of Con¬ 
stitutional Law, pp. 66-88. Hart, Actual Government, ch. xxiv. 
Hinsdale, American Government, secs. 374-380. Johnson, Railway 
Transportation, ch. xxvi. 

Illustrative Material. —Annual reports of the Interstate Com¬ 
merce Commission, of the Department of Agriculture, of the Attorney- 
General, of the Commissioner of Navigation, of the Commissioner of 
Immigration, and of the Public Health and Marine Hospital Service. 

Research Questions 

1. What were the reasons for giving Congress control over foreign 
and interstate commerce? 

2. Why did the delegates from the Southern states oppose giving 
this power to Congress? 

3. What is meant by the “original package” doctrine? 

- 4. Why should a railroad company be prohibited from granting 
rebates? For charging more for a “short haul” than for a “long 
haul”? From transporting the products of its own mines and manu¬ 
factories? From pooling its freight or earnings? 

5. What are the arguments for and against granting government 
subsidies for the upbuilding of the merchant marine? 

6. What have been the principal reasons for the decline of the 
American carrying trade? 

7. What is the amount of money annually appropriated for im¬ 
proving the rivers and harbors of the country? 

8. How has the commerce clause of the Constitution been the source 
of important extensions of the power of the national government? 
IMention some important recent acts of Congress that have been 
passed in pursuance of this clause. 

9. Do you think a law of Congress prohibiting the transportation 
of intoxicating liquors into a prohibition state would be a constitu¬ 
tional act? 

10. Should Congress, in your judgment, impose greater restric¬ 
tions upon immigration than it now imposes? 

11. Do you think Congress should have power to regulate the busi¬ 
ness of life insurance? To regulate marriage and divorce? 

12. Is the policy of governmental regulation of railroads preferable 
to governmental ownership? Give your reasons. 


CHAPTER XIV 


OTHER IMPORTANT POWERS OF CONGRESS 

THE POST OPFICE, COPYRIGHTS, PATENTS, THE ARMY, THE 
NAVY, ETC. 

The Postal Service.—The beginnings of the postal service 
in the United States date back to the action of the Conti¬ 
nental Congress in creating a post office department in 
1775, and appointing Benjamin Franklin as its head. Un¬ 
der Franklin’s direction postal routes were established 
throughout the colonies and the mails were carried over 
them at intervals of one or two weeks. In 1776 there were 
twenty-eight post offices located in the more important 
towns. The Constitution gave Congress power to estab¬ 
lish post offices and post roads, and when the new govern¬ 
ment was established, the postal service was reorganized 
and extended. In 1790, however, there were only seventy- 
five post offices in the thirteen states, and less than 2,000 
miles of post roads. The total revenues were only $37,000, 
and the expenditures only $32,000. Now there are more 
than 60,000 offices and over 25,000 different routes, with 
an aggregate mileage of about 450,000 miles. A recent 
postmaster-general has well said: “The postal establish¬ 
ment of the United States is the greatest business concern 
in the world. It handles more pieces, employs more men, 
spends more money, brings more revenue, uses more 
agencies, reaches more homes, involves more details, and 

248 


THE POSTAL SERVICE 


249 


touches more interests than any other human organization, 
public or private, governmental or corporate.” Some idea 
of the magnitude of the service may be gained from the fact 
that during the year 1909 nearly nine billion stamps were 
sold, nearly fourteen billion pieces of mail were handled, 
nearly five hundred million dollars worth of domestic money 
orders were issued, and more than forty million' articles 
were registered. This vast business requires for its trans¬ 
action the services of about 325,000 employees. The total 
receipts for the year aggregated $203,562,383, and the 
expenditures $221,004,102. 

The Postal Deficit .—In the early history of the country 
the postal service was self-supporting, but in recent years 
there has nearly always been a deficit, the amount reaching 
$17,000,000 in 1909.^ The two principal causes of the 
deficit are the loss of revenue on account of second-class 
mail matter and the rural free delivery service, the former 
item of loss amounting in 1909 to more than $64,000,000 
per annum, the latter nearly $28,000,000. 

Mail Matter.—Congress has power to decide what 
matter shall be admitted to the mails and what shall be 
excluded. In addition to books and printed matter gen¬ 
erally it allows parcels of merchandise weighing not more 
than four pounds to be carried through the mails; also 
seeds, bulbs, roots, samples of flour, dried fruits, cut flowers, 
geological and botanical specimens, soap, nuts, dried insects, 
etc. On the other hand, the following matter is denied 
admission to the mails: parcels weighing over four pounds, 
except printed matter; ^ poison, explosives, dead animals, 
liquors, and other objects unsuitable for transportation 

1 In 1910 by rigorous economy the deficit was reduced to $5,848,000. 

2 Unless intended for foreign countries with which we have parcels 
post treaties. 


250 OTHER POWERS OF CONGRESS 

in the mails; obscene matter and articles adapted or de¬ 
signed for immoral purposes; and all matter relating to 
lotteries and schemes for swindling the public. 

Fraud Orders.^^ —The mails have so frequentl3^ been 
used by dishonest concerns for circulating advertising 
matter designed to defraud the public, that a law was 
passed some years ago authorizing the postmaster-general 
to withhold the privileges of the postal service from per¬ 
sons using it for such purposes. In pursuance of this au¬ 
thority, he frequently issues against fraudulent concerns 
what are called ‘Traud orders,” instructing the local post¬ 
master not to deliver mail to them in the future. 

Classification of Mail Matter. —Mail is classified into 
four different classes: letters and postal cards; second, 

newspapers and other periodical publications; third, printed 
matter not admitted to the second class; 2ind fourth, mer¬ 
chandise and other matter not comprehended in the other 
three classes. 

The Rates of Postage on the different classes have varied 
in amount from time to time. In the early history of the 
post-office department the rates for transporting letters 
were regulated on the basis of the distance carried, and 
according to the number of sheets in the letter, the amount 
ranging from six to twenty-five cents. Since 1863, how¬ 
ever, there has been a uniform rate irrespective of distance. 
Thus a letter will be carried from New York to Alaska, 
Hawaii, or the Philippines for the same rate that it will be 
carried from New York to Jersey City. The present rate of 
two cents for letters was established in 1883. Before 1847, 
when adhesive postage stamps were introduced, payment 
of postage was made in cash and the amount indorsed on 
the envelope. In 1872 postal cards were introduced, and 
in 1898 the rate for private post cards was made one cent. 


MAIL MATTER 


251 


On the transportation of first-class mail matter the gov¬ 
ernment realizes an enormous profit notwithstanding the 
long distance much of it is carried. During the year 1909 
the profits on first-class matter amounted to $53,674,000. 
There is also a substantial profit derived from carrying 
fourth-class matter and foreign mail. 

Second-Class Matter mailed by the publishers is carried 
at the rate of one cent a pound; but newspapers are carried 
free to any office within the county of publication except 
in cities having free delivery service. The loss which the 
government sustains in carrying second-class matter is 
enormous. During the year 1909 more than 700,000,000 
pounds of such matter was transported at a loss of over 
eight cents per pound. In 1907 it constituted over 63 per 
cent of all domestic mail and yet it yielded only about 
five per cent of the postal revenues, the loss being greater 
than the profits realized on all other classes of mail comi- 
bined. 

Should the Second-Class Rate he Increased ? Recently 
there has been considerable agitation in favor of increas¬ 
ing the rate, especially on magazines which are overloaded 
with advertising matter and on other publications which 
are devoted largely to advertising purposes. Successive 
postmasters-general have urged a readjustment of the rates, 
but as yet Congress has taken no action further than to 
appoint a commission to investigate and report on the 
subject. The two suggestions that have been most con¬ 
sidered are, that a higher rate should be imposed on maga¬ 
zines than on newspapers in view of the fact that the aver¬ 
age distance of transportation is greater in the case of 
magazines than in the case of newspapers, and that a higher 
rate be imposed on advertising matter than on purely 
reading matter. 


252 


OTHEk POWERS OF CONGRESS 


Against these arguments it is contended that the educa¬ 
tional benefits derived from the extensive circulation of 
second-class matter are very great, and that the govern¬ 
ment can well afford to contribute something toward the 
dissemination of advertising information among the masses 
of the people. Moreover, it is argued that the circulation 
of second-class matter is responsible for a large amount of 
first class matter and thus the government makes up in 
the increased profits on first-class matter what it loses on 
second-class matter. Thus it is said that fifty pages of 
advertising matter in a popular magazine may lead to the 
writing of 50,000 letters, on each of which the government 
derives a substantial profit. 

Besides the loss on second and third-class matter there is 
an annual loss of nearly $6,000,000 on congressional and 
departmental mail which is carried free. There is also a 
loss of nearly $4,000,000 a year on the registry service, and 
a heavy loss on the rural free delivery service. 

Free Delivery Service.—^The extension of rural free de¬ 
livery service has been the most rapid and remarkable of 
all the undertakings of the post office department. It be¬ 
gan as an experiment in 1897, when less than $15,000 was 
appropriated to test the advantage of free delivery in coun¬ 
try districts, and it has been extended until it now con¬ 
stitutes one of the largest branches of the postal service, 
the annual expenditures on account of the service exceeding 
$35,000,000. This is the largest item of expenditure by the 
post office department on any of its services except the 
transportation of mail on the railroads, which foots up over 
$45,000,000. There are now more than 40,000 rural free 
delivery routes in operation, and nearly three billion pieces 
of mail are annually delivered to residents along these routes. 
An investigation made in 1909 shov/ed that the postage on 


FREE DELIVERY SERVICE 


253 


the average amount of mail collected on a rural route was 
$14.92 per month, while the average cost of the service 
was $72.17. The average cost of the service on a rural route, 
therefore, exceeded the average revenue derived from 
postage by $687 per year. On that basis the total loss 
on the operation of the service must have been about 
$28,000,000. But while the loss to the government 
in money has been great, the advantage to the country 
districts served has been notable. Besides the convenience 
to the country residents it has brought them into closer 
relation with the centers of population, made country life 
more attractive and less monotonous, increased farm values, 
and encouraged the improvement of country roads, since 
the department insists upon the maintenance of the high¬ 
ways in good condition as a prerequisite to the introduc¬ 
tion and continuance of the service. 

Free Delivery in Cities .—Free delivery of mail in the 
larger towns and cities was first introduced during the 
Civil War, and the service has been extended to include 
all places of not less than 10,000 inhabitants or where the 
postal receipts are not less than $10,000 per year. In 1885, 
provision was made by which immediate delivery (“ special 
delivery”) of a letter upon its arrival at a city post office 
could be secured by payment of ten cents. 

Registry Service.—In 1855, Congress established the 
registry service, by which upon the payment of extra post¬ 
age—the extra rate is now ten cents per letter or parcel— 
special care is taken of letters or parcels registered. Thus 
the safe delivery of a valuable letter or parcel is practically 
assured, and by a recent law the post office department has 
provided a system of insurance against the loss of registered 
matter—the maximum amount allowed in case of loss being 
fifty dollars. 


OTHER POWERS OF CONGRESS 


254 

Money-Order Service.—In 1864 the money-order service 
was established, by which upon the payment of a small 
fee, ranging from three to thirty cents according to the 
amount of the order, money may be sent through the mails 
without danger of loss. At all the larger post offices and 
at many of the smaller ones, international money orders 
may also be obtained at rates ranging from eight to ninety 
cents, payable in almost any part of the world where the 
mails are carried. The primary object of the postal money- 
order service is to provide for the public a safe, convenient, 
and cheap method of making remittances by mail, and it is 
the declared policy of the department to extend the service 
to all post offices where its introduction is practicable. 

Postal Savings Banks.—One of the most important ex¬ 
tensions of the postal service is the establishment of a sys¬ 
tem of postal savings banks, authorized by an act of Con¬ 
gress passed in 1910.^ This service has long been performed 
by the governments of many other countries, and its intro¬ 
duction into the United States had been strongly recom¬ 
mended by successive postmasters-general for a number of 
years. The proposition was also indorsed by both of the 
great political parties in their national platforms. In favor 
of the proposifion it was pointed out that in many com¬ 
munities private savings banks are inaccessible, there being 
only one such bank to every 52,000 of the population of 
the country, as a whole; that on account of the popular 
distrust of private savings banks in many communities, 
savings were hoarded and hidden and thus kept out of 
circulation; that on account of the popular confidence in 
the government the establishment of savings banks under 

^ Already in 1-906 a system of postal savings banks had been es¬ 
tablished in the Philippine Islands, where it was giving entire satis¬ 
faction. 


POSTAL SAVINGS BANKS 


255 


its auspices would cause the money now hidden to be 
brought out and put into circulation; that it would encour¬ 
age thrift and economy as well as stimulate loyalty and 
patriotism among depositors; and that it would improve 
the conditions of farm life, thus supplementing the work 
of the rural free delivery service, the telephone, and the 
interurban trolley car. 

The new law for the establishment of postal savings banks 
provides that any person may deposit with the local post¬ 
master any amount from one dollar up to $500 and receive 
interest thereon at two per cent per annum. Detailed pro¬ 
visions are made for the investment by the government of 
the enormous sums that will no doubt be deposited in the 
post ofiices throughout the country. In the beginning one 
post office in each state was selected for experiment, and 
gradually the number will be extended as suitable arrange¬ 
ments can be made. 

Parcels Post Service.—In many countries the post office 
department also performs, through the parcels post ser¬ 
vice, what amounts to an express business. Thus in a num¬ 
ber of the European countries one may send boxes or par¬ 
cels weighing as much as fifty or even one hundred pounds 
through the mails at very low rates of postage. In the 
United States books and packages of merchandise may be 
sent through the mails, but the weight of the package ex¬ 
cept in the case of books is limited to four pounds.^ The 

1 The United States has “parcels post” treaties with a number of 
foreign countries, however, by which parcels weighing as much as 
eleven pounds may be sent through the mails to those countries at the 
rate of twelve cents per pound. Thus a resident of New York may 
send a parcel weighing as much as eleven pounds to .China at the rate 
of twelve cents per pound, but if he wishes to send a parcel to any 
point in the United States he must pay sixteen cents per pound and 
the parcel must not weigh over four pounds. 


OTHER POWERS OF CONGRESS 


256 

limitation as to weight and the comparatively high rate 
of postage—sixteen cents per pound—makes resort to the 
express companies necessary much more than in Europe. 
In recent years there has been a widespread agitation for 
the establishment of a parcels post system in the United 
States, but the proposition has not been approved by Con¬ 
gress, partly because of the increased expenditure it would 
entail upon the post office department, and partly because 
of the opposition of the express companies and the mer¬ 
chants in the small towns whose business would be injured 
through the increased competition with the large mail order 
houses in the cities. Nevertheless it would be a great con¬ 
venience to the general public, and like the rural free de¬ 
livery service would tend to improve materially the con¬ 
ditions of country life. 

Postal Subsidies.—In recent years there has been con¬ 
siderable agitation, principally by the postal authorities 
and the commercial organizations of the country, in favor 
of extending our postal facilities with certain foreign coun¬ 
tries, notably South America and the Orient, where they 
are now very inadequate. While most of the European 
governments have quick and frequent postal communica¬ 
tions with these countries, ours are slow and infrequent.^ 

^ The time required of our fastest vessels carrying the mails, to make 
the trip between New York and Rio de Janeiro, is eighteen and one- 
half days; others require as many as twenty-eight days; while Euro¬ 
pean steamers make the trip in from twelve to fourteen days. TJie 
United States has service to Rio de Janeiro and southern Atlantic ports 
of South America about six times a month,and to the northern portsof 
Brazil about three times a month, but the department has no voice in 
fixing the dates of sailing or the ports of call. From Europe to Brazil 
there are on the average four mail trips a week during the year, and 
from Brazil to Europe an average of five mail trips a week. Japan 
is establishing lines to Mexico and South America, and Chile to the 


POSTAL SUBSIDIES 


257 

Most foreign governments have adopted the policy of sub¬ 
sidizing private steamship lines to carry the mails to out- 
of-the-way places. In 1891, Congress passed a law for this 
' purpose, but the amount appropriated is so small that the 
post office department has not been able to extend our mail 
facilities with foreign countries in anything like the pro¬ 
portion that our increasing commercial interests require. 

International Postal Union. —In this connection it may 
be noted that at the present time practically all the coun¬ 
tries of the world are united in what is known as the Inter¬ 
national Postal Union formed for the reciprocal exchange 
of mails between the post offices of all countries belonging 
to the Union. The rates are fixed by a congress which 
represents the member states and which meets every five 
years. A letter may therefore be sent from one country to 
any other in the Union at a uniform rate, which, with some 
exceptions, is five cents. By a recent special arrangement 
the rate on letters between the United States, Germany, 
and England has been reduced to two cents. Likewise 
the rate between the United States and Canada and Mexico 
is by special arrangement two cents. 

Classes of Post Offices. —Post offices are grouped in four 
classes on the basis of their gross annual receipts. First- 
class offices are those whose gross receipts exceed $40,000 
a year.^ They are usually located in buildings owned by 
the government, and in the larger cities there are branch 
offices or sub-stations in different parts of the city. Fourth- 
class offices are those whose annual receipts are below $i ,000. 

western entrance of the Panama Canal. “Report of the Postmaster- 
General for 1909,” p. 24. 

1 The receipts of the New York post office are about $15,000,000 
a year, while those of Chicago amount to more than $10,000,000 
a year. 

Govt. U. S.—17 


258 OTHER POWERS OF CONGRESS 

Postmasters of the fourth-class offices are appointed by the 
postmaster-general, usually upon the recommendations of 
members of Congress; those of first-, second-, and third-class 
offices are appointed by the President, likewise mainly 
upon the recommendations of members of Congress. Sal¬ 
aries of postmasters of the offices of the first three classes 
are determined mainly on the basis of the receipts of the 
office. Fourth-class postmasters receive no fixed salary, 
but instead a percentage of the value of the stamps can¬ 
celed. In the larger post offices there are in addition to 
the postmaster one or more assistant postmasters and a 
force of clerks and carriers, the number depending on the 
amount of business and the size of the city. 

Copyrights.—The Constitution gives Congress the power 
to promote the progress of science and useful arts by secur¬ 
ing for limited times to authors and inventors the exclusive 
right to their respective writings and discoveries. The 
purpose of the copyright law is to protect authors from 
having their books and other writings republished without 
their permission, and hence to prevent the rewards of their 
talent and industry from being appropriated by others. 
In pursuance of this provision Congress has enacted legis¬ 
lation enumerating the productions for which copyrights 
may be granted, the conditions under which they may be 
secured, and the terms for which the protection shall last. 
The law provides that copyrights may be granted for books, 
musical compositions, maps, works of art, photographs, and 
even for unpublished works. In the case of published*works 
two copies of the best edition must be deposited with the 
register of copyrights at Washington. The ordinary form 
of copyright notice is “Copyright, 19—, by A. B.” 

The term of the copyright is twenty-eight years, but it 
may be renewed for another period of twenty-eight years. 


COPYRIGHTS 


259 


During the period of the copyright the author has the ex¬ 
clusive right to print, publish, and sell the article copy¬ 
righted, and in case of infringement he may have recourse 
to the federal courts for damages on account of the loss 
sustained. A copyright may be sold or otherwise trans¬ 
ferred, but the fact must be recorded by the register of 
copyrights. 

International Copyright .—In former times the writings 
of an American author might be republished in a foreign 
country without his consent, and thus he had no protection 
outside of his own country. Accordingly, to secure protec¬ 
tion to American authors against the republication of their 
works in foreign countries without their consent, Congress 
enacted a law in 1901, looking toward the reciprocal pro¬ 
tection of American and foreign authors against infringe¬ 
ment upon the rights of each in the country of the other. 
In pursuance of this act a copyright will be granted to a 
foreign author protecting him against the republication 
of his works in the United States provided the government 
of which he is a subject will grant similar protection to 
American authors. International copyright treaties de¬ 
signed to secure protection of this sort have been entered 
into between the United States and a number of foreign 
countries. 

Patents.—A patent, like a copyright, is a form of pro¬ 
tection granted by the government to an inventor to secure 
to him for a limited period the exclusive enjoyment of the 
fruits of his skill and industry. It is in its nature a monop¬ 
oly, and for this reason is criticized by some persons. Pat¬ 
ents were granted by the state governments until the 
Constitution conferred this power on Congress. As early 
as 1790, Congress passed a law authorizing the granting 
of patents for new and useful inventions, and this law 


26 o 


OTHER POWERS OF CONGRESS 


has been amended and its scope extended several times 
since. 

The Patent Office.—In 1836, an office or bureau charged 
with receiving applications, conducting examinations, and 
granting patents was created in the department of state, 
but it was transferred to the department of the interior 
in 1849. This office has grown to be one of the largest and 
most important branches of the government service. It 
has a large number of examiners and experts arranged in 
groups, each of which examines the applications for patents 
for inventions of a particular class. 

Conditions .—The applicant for a patent must declare 
upon oath that he believes himself to be the original in¬ 
ventor of the article for which he desires a patent, and he 
must submit with his application a full description or draw¬ 
ing of the invention, and if demanded, also a model of the 
same. The invention must be a useful one, for patents will 
not be granted for inventions which have no practical or 
scientific value. If the patent is refused by the commis¬ 
sioner of patents, the applicant can take an appeal to the 
court of appeals of the District of Columbia. A fee of 
fifteen dollars is charged for filing the application, and one 
of twenty dollars for issuing the patent.^ The term for 
which a patent may be issued under the present law is 
seventeen years, which term may be extended only by act 
of Congress. When a patent is granted the word “pat¬ 
ented ” with the date on which it was issued must be 
placed on the article in order that the public may have 
notice of the fact that it is patented. During the term of 

1 Notwithstanding the large number of employees in the patent 
office, the office is self-supporting by reason of the fees charged and 
the large number of applications, the receipts in 1910 amounting to 
more than $2,000,000. 


PATENTS 


261 


the patent the inventor has the exclusive right to manu¬ 
facture, use, or sell the article, and in case of infringement 
the law allows him to sue for damages in the federal courts. 
Patents, like copyrights, may be assigned or otherwise trans¬ 
ferred, provided a record of the transfer is made in the 
patent office.^ 

Number of Patents Granted .—The inventive genius of the 
American people is shown by the large number of patents 
which have been issued sinc6 the first patent law was passed 
in 1790. The number granted during the year 1910 alone 
amounted to 36,287. The annual reports of the commis¬ 
sioner of patents, containing a list of the patents granted, 
together with specifications and drawings of the inventions 
for which patents have been issued, constitute a remark¬ 
able record of the growth of the country along industrial 
and scientific lines. 

The Military Power of Congress. —The Constitution 
confers upon Congress the power to declare war, grant 
letters of marque and reprisal, and make rules concerning 
captures on land and water. In England and some conti¬ 
nental European states the power of declaring war belongs 
to the crown, though the means of carrying it on must be 
provided by the legislative branch of the government. The 
framers of the Constitution, however, with their distrust 
of executive power^ wisely left the whole matter to Con¬ 
gress. In the exercise of this power Congress has several 
times declared war against foreign nations. 

^ An inventor who needs more time in which to perfect his invention 
and to forestall the action of some one else may secure a caveat which 
gives him a year in which to complete his invention. 

Trade-marks are also registered by the patent office provided they 
involve interstate commerce. Trade-marks in other cases are usually 
protected by state registration. 


262 


OTHER POWERS OF CONGRESS 


A Letter of Marque and Reprisal is the technical term for 
a commission issued to an individual by a belligerent 
government authorizing him to prey upon the commerce 
of the enemy. The vessel commanded by a person holding 
such a commission is called a privateer. Privateering was 
long recognized as a legitimate mode of warfare, but the 
evils of the practice, due mainly to lack of control over the 
person bearing a commission of this sort, were so great that 
a congress of European nations held in Paris in 1856 de¬ 
clared privateering to be abolished. Finally, the second 
Hague International Peace Conference of 1907 declared 
privateering to be unlawful, and practically all the nations 
of the world are parties to this act. 

Captures .—In pursuance of the power to make rules 
concerning ca:ptures on land and sea. Congress has adopted 
a code of rules, though that matter is regulated for the 
most part by international law. Formerly it was the prac¬ 
tice to allow the commander and crew a share of the pro¬ 
ceeds of prizes captured on the sea in time of war, but in 
1898 a law was passed abolishing prize money and provid¬ 
ing that the proceeds from the sale of prizes should be turned 
into the treasury of the United States. In case of rebellion 
or insurrection the whole matter of the liability of the 
property of insurgents is within the control of Congress. 
Thus during the Civil War acts were passed for the con¬ 
fiscation of all property of the Confederates used in the 
prosecution of the war, as well as all abandoned property, 
that is, property belonging to persons who were away 
from their homes and in the Confederate service. 

The Army.—The Constitution expressly authorizes Con¬ 
gress to raise and support armies, subject to the limi¬ 
tation that no appropriation for the support of the army 
shall be for a longer period than two years. This period 


THE ARMY 


263 

corresponds to the term of Congress, and hence the limita¬ 
tion serves to keep the army under the control of the people. 
There was more or less jealousy of standing armies at the 
time of the adoption of the Constitution, and for a long 
time the regular army of the United States was unusually 
small in comparison with the great military establishments 
of the Old World. At the outbreak of the Spanish- 
American war in 1898 the authorized strength of the army 
was only 27,000 men. 

Present Strength of the Army .—In October, 1910, the 
actual strength of the regular army was 4,310 officers and 
67,459 enlisted men,^ besides a hospital corps of about 
3,500 men and some 5,200 Philippine scouts. For con¬ 
venience of administration the country is divided into 
geographical divisions, each being commanded by a major 
general and each being subdivided into two or more de¬ 
partments. Troops are transferred from one to another as 
the needs of the service may require. 

The General Staff .—Formerly the army was under the 
command of an officer styled the “commanding general,” 
but in 1903 the office was abolished and in its place a gen¬ 
eral staff was provided, consisting of about forty officers 
ranging in rank from captain to lieutenant general. The 
general staff is charged with preparing plans for the con¬ 
duct of military operations and with the general super¬ 
vision of the army. The “chief of staff,” with the rank 
of lieutenant general, occupies substantially the same 

1 The army was distributed geographically as follows: In the 
United States, 56,961 men; in Alaska, 1,128; in the Philippines, 
10,962 (not including 5,266 Philippine scouts); in Porto Rico, 604; 
in Hawaii, i,371. The distribution among the five important branches 
of the service was as follows: engineers, 2,003; cavalry, 11,763; field 
artillery, 5,039; coast artillery, 18,597, and infantry, 25,186. 


OTHER POWERS OF CONGRESS 


264 

position as that formerly occupied by the commanding 
general. 

Salaries of officers range from $1,400 per year for second 
lieutenants to $11,000 per year for the lieutenant general, 
the highest rank now in existence. ^ 

Military and Naval Expenditures .—The expenditures on 
account of the military and naval establishments have 
increased enormously in recent years. Before the war with 
Spain the appropriations for the maintenance of the army 
did not exceed $50,000,000 per annum. For the year 1910 
they amounted to $155,911,705. Chairman Tawney of 
the house committee on appropriations stated in 1910 that 
our expenditures on account of the military and naval 
establishments and pensions now aggregate more than 
seventy-two per cent of the entire income of the national 
government. ' This enormous burden should open our eyes 
more fully to the cost of war and the advantages of univer¬ 
sal peace among nations. The movement looking toward 
the settlement of international disputes by means of arbitra¬ 
tion should command the sympathy and support of all 
good citizens. 

Volunteers .—Except during the Civil War, resort has 
never been made to conscription as a method of recruiting 
the army—a practice almost universal in Europe. In most 
of our wars the chief reliance has been on volunteers and 
the militia. Thus at the outbreak of the Civil War the 
President was authorized to accept the services of 500,000 
volunteers, and at the outbreak of the war with Spain in 
1898, the President called for 200,000 volunteers. It takes 
much training to convert an inexperienced volunteer into 

^ The full rank of general has been held by but four men: Washing¬ 
ton, Grant, Sherman, and Sheridan. With the death of Sheridan in 
1888 the rank became extinct and has not been revived. 


THE ARMY 265 

an efficient soldier; but many of our great battles have 
been fought chiefly by the volunteer forces. 

The Militia.—The Constitution also authorizes Congress 
to provide for calling forth the militia to execute the laws 
df the Union, suppress insurrections, and repel invasions; 
and to provide for organizing, arming, and disciplining 
the militia, and for governing such part of them as may be 
employed in the service of the United States. The mihtia 
as defined by act of Congress consists of all able-bodied 
male citizens of the United States between the ages of 
eighteen and forty-five. That portion of the militia regu¬ 
larly organized, uniformed, and occasionally drilled and 
taught military tactics constitutes what is known as the 
national guard.^ 

Each state organizes and controls its own militia, and 
the national government has no control over it until it has 
been called into the service of the United States, when it 
becomes subject to the rules and discipline prescribed for 
the government of the regular army. In 1795, Congress 
passed an act, still in force, prescribing the conditions 
under which the militia might be called into the service 
of the United States. This act confers on the President 
of the United States the power to call out the militia, and 
authorizes him to issue the call whenever, in his judgment, 
it is necessary or expedient. But the calls must be addressed 
to the governors of the states, who are the commanders 
of their several portions of the militia. When, however, 
the militia has been mustered into the service of the United 
States the President becomes their commander in chief. 

1 According to the 1910 report of the Secretary of War, the strength 
of the organized militia is 118,960 officers and enlisted men, comprising 
141 regiments of infantry, sixty-nine troops of cavalry, forty-eight bat¬ 
teries of field artillery, and eighty-eight companies of coast artillery. 


266 


OTHER POWERS OF CONGRESS 


In pursuance of this authority the President on three 
different occasions has called out the militia; in 1794 to 
suppress the whisky insurrection in Pennsylvania; in 1812 
to repel invasion; and during the Civil War. In 1898, 
when the war with Spain broke out, the call was issued not 
for militia but for volunteers.^ Nevertheless many of the 
volunteers who responded were as a matter of fact members 
of the organized militia of their respective states. 

The Naval Militia .—In a number of the seaboard states 
and some of those bordering on the Great Lakes, there are 
organized bodies of naval militia, with training ships loaned 
by the United States for the purpose of drill and instruc¬ 
tion. Like the land militia, the naval militia of each state 
is under the control of the state and until called into the 
service of the United States is under the command of the 
governor. 2 

The Navy. —Congress is also authorized by the Con¬ 
stitution to provide and maintain a navy. In pursuance 
of this authority, Congress created a small naval establish¬ 
ment in 1794, but it amounted to little until the War of 
1812, when it was strengthened by the improvisation of a 
number of war vessels which won brilliant victories over 
the ships of Great Britain. Thereafter the navy was neg¬ 
lected until the necessities of the Civil War required its 
rehabilitation. At the close of the war the vessels in the 

1 This was due to the fact that there was doubt as to whether the 
militia could be called out and sent abroad for the purpose of prose¬ 
cuting a war against a foreign country, in view of the specification in 
the Constitution of the objects for which the militia may be called 
into the service of the United States. 

2 According to the annual report of the secretary of the navy for 
1910, the naval militia of the several states numbered about 6,000 
men. 


THE NAVY 


267 

service numbered 683, but they were sold or otherwise 
disposed of, and what was once the most powerful navy in 
existence was allowed to go to pieces. This was the situa¬ 
tion in 1881, when the secretary of the navy appointed a 
board of naval officers to determine the requirements of a 
new navy. This board prepared a somewhat elaborate 
naval program and recommended the construction during 
the next eight years of some 120 naval vessels, ironclads, 
unarmored cruisers, torpedo boats, and rams. The work of 
carrying out this program was begun in 1883—^ date which 
may properly be fixed as the beginning of our present navy. 
The first important appropriation, that of 1883, was less 
than $15,000,000. Each year the amount was increased 
until in 1910 it had reached $133,000,000. Since 1883 the 
appropriations for the maintenance of the navy have ag¬ 
gregated more than one and a half billion dollars. 

Present Strength of the Navy .—The chairman of the house 
committee on naval affairs in 1908 described the present 
strength of the navy in the following words: 

When the present naval appropriation bill becomes a law, we shall 
have built, building, and authorized thirty-one battle-ships, a dozen 
armored cruisers, eleven coast-defense vessels, forty-nine cruisers of 
different types, thirty-one torpedo-boat destroyers, thirty-two tor¬ 
pedo boats, and twenty-eight submarines. 

This year we have authorized 42,000 men, increasing our quota by 
6,000. We have now 3,164 officers on the active list in the navy, 950 
midshipmen under instruction, and 2,500 apprentice seamen. In 
addition to this we have a Marine Corps consisting of nearly 9,000 
men and 278 officers; a navy thoroughly modern in every respect 
and of the highest standard of efficiency. Our navy to-day ranks third 
among the navies of the world, but I believe that ship for ship and 
man for man we have the best navy in the world. 

For administrative purposes the ships of the navy are 
grouped into fleets, and these are again subdivided into 


268 


OTHER POWERS OF CONGRESS ’ 


squadrons. Thus the North Atlantic fleet is divided into a 
coast squadron and a Caribbean squadron. Within each 
squadron there are usually a number of divisions. There are 
navy yards where ships are either built or repaired at a num¬ 
ber of places on the Atlantic and Pacific coasts,^ and there 
is a naval academy at Annapolis (founded in 1845), where 
young men are educated for service in the navy.^ There 
is also a naval war college at Newport, Rhode Island, for 
advanced study of naval problems and questions of in¬ 
ternational law. 

Ranks .—Until 1862, the highest official rank in the navy 
was that of captain, although the title commodore was 
popularly applied to officers in command of a squadron. 
The following table is a list of the officers of the navy, be¬ 
ginning with the highest, together with the corresponding 
ranks in the army: 


Navy 

Admiral. 

Vice Admiral. 

Rear Admiral. 
Commodore .3 
Captain. 

Commander. 

Lieutenant Commander. 
Lieutenant. 

Lieutenant, junior grade. 
Ensign, 


Army 

General. 

Lieutenant General. 
Major General. 
Brigadier General. 
Colonel. 

Lieutenant Colonel. 
Major. 

Captain. 

First Lieutenant. 
Second Lieutenant. 


^ Most of the ships of the navy have been constructed by contract 
with private shipbuilding companies, but several experiments have 
been made of government construction in the navy yards. Thus 
the battleship Louisiana and several others were constructed by the 
government in its own shipyards. 

2 For further information concerning the naval academy, see p. 338. 

3 The rank of commodore no longei txists except for its survival 
on the retired list. There are some twenty-five or thirty rear ad- 


THE NAVY 


269 

Pay .—Salaries of naval officers range from $1,400 a 
year for ensigns to $13,500 for the admiral, while those of 
enlisted seamen range from nine dollars a month to thirty- 
five dollars a month. 

Bankruptcy Legislation.—The Constitution confers upon 
Congress the power to pass uniform laws on the subject 
of bankruptcies throughout the United States. Bankruptcy 
is the condition of a person whose liabilities exceed his 
assets, and a bankruptcy law is one which provides for the 
distribution of the assets of such a person among his cred¬ 
itors and for his discharge from further legal obligation 
to pay his debts, thus enabling him to make a new beginning 
in business. The discharge is only from the legal obligation; 
the moral obligation remains, and should be fulfilled in case 
of ability to do in the future. 

State Insolvency Laws .—Before the adoption of the Con¬ 
stitution the states passed insolvency laws discharging 
debtors from their legal obligations, and it has been held 
by the Supreme Court that they may still pass such laws, 
subject to the condition that they can affect only citizens 
of the state in which the law is passed, and apply only to 
such contracts as may be entered into subsequent to the 
enactment of the law. If there is a federal bankruptcy law 
in force it supersedes all conflicting provisions in the state 
laws on the subject. 

Federal Acts .—Since the Constitution went into effect 
Congress has enacted four different bankruptcy laws, 
namely, in 1802, 1840, 1867, and 1898, the first three of 
which were in operation only fifteen years altogether. The 

mirals, but no vice admirals. The rank of admiral has been held by 
but three men: Farragut, Porter, and Dewey. The act of 1899 re¬ 
viving the rank of admiral, to which Dewey was appointed, provided 
that the office should cease to exist with his death. 


270 OTHER POWERS OF CONGRESS 

present law—that of 1898—provides for both ^'voluntary” 
and “involuntary” bankruptcy. Any debtor, except a 
corporation, may voluntarily have himself adjudged a 
bankrupt by filing a petition in a United States district 
court, showing that his liabilities are in excess of his assets. 
Any debtor except a corporation, a wage earner, or a farmer, 
may, against his will, upon petition of his creditors, be de¬ 
clared a bankrupt under certain conditions. 

Bankruptcy petitions are referred to “referees” for 
examination and report. After hearing the testimony on 
the petition the referee reports his findings to the court, 
which makes its decision largely on the basis of such find¬ 
ings. 

Implied Powers.—After expressly enumerating in suc¬ 
cession the various powers of Congress, the more important 
of which have been described above, the Constitution con¬ 
cludes with a sort of general grant, empowering Congress 
to make all laws which shall be necessary and proper for 
carrying into execution those enumerated above. This is 
sometimes called “the elastic clause,” since it is capable of 
being stretched by interpretation to cover many matters 
that Congress might not otherwise feel authorized to deal 
with. It is doubtful, however, whether it really adds any¬ 
thing to the power of Congress, since that body would 
unquestionably have authority to do whatever is necessary 
and proper to carry into effect the powers expressly con¬ 
ferred upon it. It is a maxim of constitutional construction 
that wherever power to do a particular thing is conferred, 
the means for doing it are implied. Manifestly it would 
have been impossible to set forth in detail all the incidental 
powers necessary to be exercised in carrying into effect the 
mandates of the Constitution relating to taxes, coinage, 
post offices, making war^ etc. 


IMPLIED POWERS 


271 

Liberal vs. Strict Construction .—The question of the in¬ 
terpretation of the scope and meaning of this grant of 
powers arose very early in the history of the national gov¬ 
ernment, in connection with the proposition of Hamilton to 
establish a United States bank. Hamilton contended that 
the authority to establish such an institution was clearly 
implied in the power to borrow money and pay the debts 
of the United States. A federal bank, he urged, was a 
proper if not a necessary means for carrying into effect 
these important powers of Congress, just as the establish¬ 
ment of a mint was necessary to carry out the power relat¬ 
ing to the coinage of money. Jefferson and his school of 
political thinkers, however, held to a strict interpretation 
of the Constitution and maintained that Congress had no 
right to exercise any power which was not expressly con¬ 
ferred. The view of the “loose” or “liberal” construc¬ 
tionists, however, prevailed, and from the beginning Con¬ 
gress has relied upon the doctrine of implied powers for its 
authority to legislate on many important questions. 

Examples of Implied Powers .—It was upon this author¬ 
ity that foreign territory has been purchased and governed; 
that a protective tariff has been levied; that a national 
bank was established; that legal tender paper money has 
been issued; that the construction of the Panama Canal has 
been undertaken; that ship subsidies have been granted, 
that postal savings banks have been established; that ed¬ 
ucation has been fostered; and many other activities un¬ 
dertaken. The policy of liberal interpretation was first 
adopted by Chief Justice Marshall of the Supreme Court 
and his associates, and with rare exceptions has been fol¬ 
lowed by the court throughout its entire history. The ef¬ 
fect has been to strengthen the national government and 
render it capable of fulfilling the great purposes for which 


272 


OTHER POWERS OF CONGRESS 


it was created. The whole course of our political and con¬ 
stitutional history is different from what it would have 
been had the view of the strict constructionists prevailed. 

References.— Andrews, Manual of the Constitution, pp. 120-148. 
Beard, American Government and Politics, ch. xix. Cooley, Prin¬ 
ciples of Constitutional Law, pp. 94-1 ii. Fairlie, National Admin¬ 
istration, chs. ix, X, xii. Hart, Actual Government, ch. xxiv. 

Documentary and Illustrative Material.—Copies of the annual 
reports of the Postmaster-General, the Librarian of Congress, the 
Commissioner of Patents, the Secretary of War, and the Secretary of 
the Navy, all of which may be obtained gratis from the officials 
mentioned. 

Research Questions 

1. Why should the postal service be conducted by the govern¬ 
ment? Should the transportation of the mail be a government 
monopoly? 

2. Should the rates of postage on second-class matter, in your 
opinion, be increased? Why? 

3. What are the advantages of a postal savings bank system? 

4. Ought the government to establish a parcels post system? To 
what extent do we already have a parcels post service? 

5. Do you think our postal facilities with South America and the 
Orient should be improved by means of ship subsidies? 

6. What would be the advantage of making the tenure of post¬ 
masters permanent? 

7. Why should the granting of copyrights and patents be placed 
under the jurisdiction of the national government rather than under 
that of the state governments? 

8. Why should the term of a copyright or patent be limited? 

9. Socialists argue that since the granting of a patent to an in¬ 
ventor secures to him a monopoly of the manufacture and sale of his 
invention, the government ought not to grant patents for such pur¬ 
poses. What is your opinion of this argument? Would it be better 
for the government to compensate the inventor and remove the 
restrictions upon the manufacture and sale of his invention? 

10. Why are the appropriations for the maintenance of the army 
limited to two years? 


RESEARCH QUESTIONS 273 

11. Should the expenditures on account of the army and navy, in 
your opinion, be reduced? 

12. What do you understand by the movement among the nations 
for disarmament? Do you think disarmament desirable or prac¬ 
ticable? 

13. Tell something of the objects and results of The Hague Peace 
Conferences. Give examples of some disputes between the United 
States and other countries that have been settled by arbitration. 

14. What is the purpose of a bankruptcy law, and why should the 
power to enact bankruptcy legislation be conferred upon Congress 
rather than left to the states? 

15. What is the distinction between “implied” and “inherent” 
powers under the Constitution? Give some examples of each. 

16. Which in your judgment is the safer policy, that of strict 
construction of the Constitution or liberal construction? 

Govt. U. S.—18 


\ 


CHAPTER XV 


THE PRESIDENCY: ORGANIZATION AND MODE OF ELECTION 

The Presidential Office.—One of the weaknesses in the 
organization of the government under the Articles of Con¬ 
federation was, as we have seen, the lack of an executive 
to carry into effect the resolutions of Congress and the 
treaties of the United States. There was no doubt, there¬ 
fore, in the minds of the framers of the Constitution in 
regard to the desirability of providing for an executive de¬ 
partment coordinate with the legislative department. It 
was accordingly declared that the executive power should 
be vested in an officer called the President of the United 
States. 

Proposed Executive Council .—While the convention was 
practically unanimous in the view that the supreme ex¬ 
ecutive power should be vested in a single person, a good 
many members looked with favor on a proposition to as¬ 
sociate with the President an executive council which 
should share with him the exercise of the executive power 
in certain important fields. Most of the state constitutions 
then in force had provided such councils, and now that a 
national executive with far larger powers was being created 
there was all the more reason why it should be placed to 
some extent under the guardianship of a council. But the 
proposition was rejected, and in its place the Senate was 
charged with acting as an executive council to the President 


274 


THE PRESIDENTIAL OFFICE 


275 


in negotiating treaties and the making of appointments, 
but in no other respects. 

Qualifications of the President.—The Constitution re¬ 
quires that the President shall be a natural born citizen of 
the United States,^ that he must have attained the age of 
thirty-five years, and must have been fourteen years a resi¬ 
dent of the United States. The same qualifications are re¬ 
quired of the Vice President. 

The Presidential Term.—There was considerable dis¬ 
cussion in the convention regarding the term of the Presi¬ 
dent. It was first decided that the term should be seven 
years and the President made ineligible to a second term, 
but upon further consideration the convention decided to 
fix the term at four years and nothing was said in regard 
to reeligibility. The result is, the President may serve as 
many terms as the people may see fit to elect him. The 
following Presidents have been elected to two terms: Wash¬ 
ington, Jefferson, Madison, Monroe, Jackson, Lincoln, 
Grant, Cleveland, and McKinley.^ Mr. Cleveland, after 
serving one term, was renominated by his party but was 
defeated by the Republican candidate! He was then 
nominated for the third time by his party and was elected. 
Washington declined a third term and his example has 

1 Or a citizen of the United States at the time of the adoption of 
the Constitution. This exception was made out of respect to the 
distinguished men of foreign birth, such as Alexander Hamilton and 
James Wilson, who were members of the convention that framed the 
Constitution. As more than a hundred years have elapsed since the 
adoption of the Constitution, the exception, of course, no longer has 
any meaning. 

2 Mr. Roosevelt became President by the death of President Mc¬ 
Kinley about half a year after the beginning of the latter’s second 
term. He served out the unexpired term of Mr. McKinley and was 
elected to the following full term of four years. 


276 THE PRESIDENCY: ORGANIZATION, ETC. 

been followed by his successors. The precedent thus es¬ 
tablished, that the President shall serve only two terms, 
has become a fixed part of our unwritten constitution, and 
but one attempt has ever been made to break the custom.^ 

Mode of Election.—No question consumed so much of 
the time of the convention as that relating to the method 
of choosing the President. Various schemes were proposed. 
A few members favored election by the people; others 
urged election by Congress, and at first this method met 
with the favor of the convention. Against the method of 
popular choice it was argued that the people were not 
competent to choose a chief magistrate for the entire coun¬ 
try, and besides, under such a system, they would be in¬ 
fluenced by demagogues and scheming politicians. Again, 
the tumults and disorders, the “heats and ferments” of a 
popular election would convulse the community to the 
breaking point. Against the method of election by Con¬ 
gress, it was urged that the President would be a mere 
creature or tool of that assembly and would be under the 
temptation of making promises or entering into bargains 
with influential members in order to secure an election. 
Moreover, such a method was contrary to the great prin¬ 
ciple upon which all the members were agreed, namely, 
that the three departments of the national government 
should be kept separate and independent of one another. 

The clause as finally adopted provides that the President 
shall be chosen, not directly by the voters, but by electors 
to be appointed in each state in such manner as the legis¬ 
lature thereof may direct, each state to have as many elec¬ 
tors as it has senators and representatives in Congress. 

^ This was made by General Grant, who in 1880 was a candidate for 
the Republican nomination for a third term, but the opposition to 
third terms was so strong that he failed of the nomination. 


MODE OF ELECTION 


277 

Breakdown of the Electoral Plan .—It was at first expected 
that the electors of the different states, composed of lead¬ 
ing citizens presumably well acquainted with the qualifi¬ 
cations of the candidates for the chief magistracy, would 
meet at the state capitals, discuss among themselves the 
strength and weaknesses of the several candidates, and 
then exercising their full judgment, cast their votes for 
the fittest. But the scheme quickly broke down in prac¬ 
tice, and instead of a real choice by small bodies of men, 
we have a system which amounts to direct election by the 
masses of the voters, though the form of indirect election 
is still followed. As soon as political parties were thor¬ 
oughly organized, the electors, who were intended to be 
men “capable of analyzing the qualities adapted to the 
Presidential office,” were reduced to the position of party 
puppets who no longer exercised their own judgment in 
choosing the President but merely registered, like automata, 
the will of their party. As Ex-President Harrison once re¬ 
marked, an elector who should fail to vote for the nominee 
of his party would be the object of execration and in times 
of very high excitement might be the subject of a lynching. V 
So closely do the electors obey the will of their party that 
we always know at the close of election day, on Tuesday 
after the first Monday in November, when the electors 
themselves are chosen, who will be the next President, 
though in fact the electors do not meet in their respective 
states until the following January, formally to register the 
choice of the people. 

Choosing Presidential Electors.—In the beginning the 
presidential electors of each state were chosen by the leg¬ 
islature, either by joint ballot of the two houses sitting to¬ 
gether, or by concurrent vote. In the course of time, how- 
1 “This Country of Ours,” p. 77. 


278 THE PRESIDENCY: MODE OF ELECTION 

ever, popular election of electors was introduced, South 
Carolina (1868) being the last state to choose its electors 
by the legislature. 

Choice by General Ticket —the system of popular 
choice of electors was adopted, two different methods were 
followed; choice by districts, and choice on general ticket 
from the state at large; but by 1832 all the states except 
Maryland had adopted the general ticket method, and now 
there is no state which follows the district method. 

Representatives in Congress, as we have seen, are elected 
by districts, and hence the delegation in Congress from 
a particular state is often divided between Democrats and 
Republicans. But not so with Presidential electors; usu¬ 
ally the party in the majority in the state, however small the 
majority, chooses all the electors. Thus when the Demo¬ 
cratic party carried New York by a majority of hardly 
more than 1,000 votes in 1884, the entire electoral vote was 
counted for Cleveland.^ 

Among the results of the rule which gives the entire 
electoral vote of the state to one of the candidates, not¬ 
withstanding the size of the vote polled by the other can¬ 
didate, is that each party concentrates its efforts in the 

1 It sometimes happens that the electoral vote of a state is divided, 
though the instances are rare. This may be due to the personal un¬ 
popularity of one of the electoral candidates on the ticket of the ma¬ 
jority party, or, as has happened, it may be due to the mistake of 
many voters in casting their ballots for the candidate for elector at 
the head of the ticket only, believing that they are thereby voting 
for the whole ticket. As a result of the former cause, Harrison re¬ 
ceived one vote in California in 1892, while Cleveland had the other 
eight. As a result of the latter blunder, Taft received only two elec¬ 
toral votes in Maryland in 1908 and Bryan received the other six, 
although a small majority of the voters of the state thought they were 
casting their full vote for Taft. 


CHOOSING PRESIDENTIAL ELECTORS 


279 

large “pivotal” states whose votes are decisive, and thereby 
bribery and fraud in such states are powerfully stimulated. 

Candidates for the office of elector are nominated usually 
by the state conventions of each party, and generally there 
are no contests, so unimportant has the position become. 
No senator or representative or any person holding an office 
of honor, trust, or profit under the United States is eligible 
to the office of elector. Congress, under the Constitution, 
has power to fix the day on which the electors shall be 
chosen, and it has fixed the day as Tuesday after the first 
Monday in November. 

Electoral and Popular Vote .—Generally the candidate 
for President whose electors receive the largest popular 
vote will also receive the largest electoral vote; but this 
has not always happened, and usually there is only a rough 
correspondence between the popular vote and the electoral 
vote. Thus in i860 Lincoln received only about forty per 
cent of the popular vote, though he received a substantial 
majority (about fifty-nine per cent) of the electoral vote. 
Again, in 1864 he received only about fifty-five per cent of 
the popular vote, but ninety-one per cent of the electoral 
vote. Such discrepancies are due to the fact that the entire 
electoral vote of a state is usually secured for the candidate 
who receives a majority of the popular vote of the state, 
however small it may be. A party, therefore, may carry 
enough states by small margins to secure a majority of the 
electors and yet be in a minority so far as the popular vote 
of the entire country is concerned. 

Choice of the President by the Electors.—The electors, 
on the second Monday of January following their election, 
assemble in their respective state capitals for the purpose 
of choosing the President.^ The Constitution as it now 

1 The day on which the electors assemble must be the same through- 


28 o the PRESIDENCY: MODE OF ELECTION 

stands requires the electors to vote by ballot for President 
and by a distinct ballot vote for Vice President, and make 
separate lists of all persons voted for as President and of 
all persons voted for as Vice President. 

The Original Method .—The Constitution as originally 
adopted did not require the electors in casting their bal¬ 
lots to indicate the person for whom they were voting as 
President and whom for Vice President, or to prepare dis¬ 
tinct lists. The one who received the highest vote (if a 
majority) was to be President, and the one receiving the 
next highest number (whether a majority or not) was to be 
Vice President. The result of this method of choosing the 
President was that as soon as political parties were formed 
and the electors came to vote strictly on the basis of party 
there would be a tie between the two persons highest on 
the list, and as there was nothing to show on the record 
which was intended for President and which for Vice 
President there would be no election. This happened in 
i8oi, when Jefferson and Burr each received seventy-three 
electoral votes, and the choice between them had to be 
made by the house of representatives as the Constitution 
provides. 

Twelfth Amendment .—To remove the difficulty, the 
Twelfth Amendment was adopted in 1804, requiring the 

out the Union. The purpose of this requirement is to prevent deals 
or bargains among the electoral “colleges” of the different states. 
Moreover, meeting on the same day, the action of one state cannot be 
used to influence that of another. In 1857 the electors of Wisconsin 
were prevented by a snowstorm from assembling at the state capital 
on the day fixed by law. On the day following they met and cast the 
vote of the state for Fremont. But when the question of counting 
Wisconsin’s vote came up in Congress, objection was made that it 
had not been cast on the day prescribed by law. As the vote of the 
state was not decisive, the matter did not become serious. 


CHOICE OF PRESIDENT BY THE ELECTORS 281 

electors in preparing their ballots to indicate their choice 
for President and their choice for Vice President so that 
the person intended for the latter office could not be con¬ 
fused with the person intended for President. The amend¬ 
ment also requires a majority of the electoral vote to elect 
the Vice President as well as the President. 

Restrictions on the Electors .—In casting their votes the 
electors are prohibited from voting for candidates for both 
offices from the same state as themselves. The purpose of 
this provision is to prevent the electors from one state— 
if any state should ever become powerful enough—from 
choosing both the President and the Vice President from 
that state. This does not mean, however, that both the 
President and the Vice President could not be elected from 
the same state, since the electors of the other states are 
not prohibited from voting for two candidates from the 
same state. 

Formalities and Precautions .—The Constitution requires 
the electors of each state to sign, certify, seal, and transmit 
to the president of the United States senate, a list of the 
votes cast for President and Vice President. The statutes 
also require two additional lists to be prepared, one to be 
sent to the president of the senate by special messenger, 
and the other to be deposited with the nearest United States 
district judge. These extra precautions are taken to pre¬ 
vent the loss of the state’s votes through accident or other¬ 
wise. This done, the office of the Presidential elector ex¬ 
pires and the electoral colleges cannot be again summoned 
to correct errors or to make a new choice in case the Presi¬ 
dent elect should die before inauguration. 

Counting the Electoral Vote. —The Constitution directs 
that the votes transmitted to the president of the senate 
shall be opened in the presence of both houses of Congress 


282 THE PRESIDENCY: MODE OF ELECTION 

and that the votes shall then be counted. The Constitu¬ 
tion does not say who shall count the votes. Apparently 
the framers believed that the process of counting would 
never involve anything more than a simple act of addition. 
But in the course of time disputed returns began to be sent 
in, and then the process of counting came to involve the 
more difficult task of determining what should be counted. 
Thereupon the question was raised, who shall count? Was 
the president of the senate to count and the two houses 
act merely as spectators, or was the president of the senate 
to open the votes an'd the two houses do the counting? For 
a long time, when the disputes were not serious enough to 
affect the result, the president of the senate was allowed 
to count the vote and proclaim the result.^ In 1865 by a 
joint rule Congress assumed the right to count the elec¬ 
toral vote, thus taking the power away from the president 
of the senate. 

The Disputed Election of i 8 y 6 .—In 1876 a serious elec¬ 
tion dispute arose, involving the presidency. Both Hayes 
and Tilden claimed to have been elected, and the result 
depended upon which of two conflicting lists of votes from 
Florida, Oregon, South Carolina, and Louisiana should be 
counted. Under the joint rule mentioned above, either 
house could reject a questionable vote. One of the houses 
was Democratic and the other Republican, and because of 
the great excitement over the matter, it was feared that 
the votes of many states might be rejected for trivial 
reasons. After much discussion, in the course of which 

^Thus Jefferson as president of the senate in 1801, counted the 
vote which elected him President and declared himself duly elected. 
So did Adams in 1796. Suppose there had been a serious dispute in 
either of these cases, would the president of the senate have counted 
for himself the votes in dispute? 


COUNTING THE ELECTORAL VOTE 283 

many ugly threats were made, Congress agreed to the crea¬ 
tion of an electoral commission, to decide the disputed 
votes. The commission was to consist of five senators, five 
representatives, and five justices of the Supreme Court. 
As finally constituted it was composed of eight Republi¬ 
cans and seven Democrats, and by a strict party vote the 
commission decided in favor of Hayes in every case, thus 
insuring his election. The minority accepted the result, 
but not without protest and criticism. 

The Act of 188 ^.—After this decision. Congress took up 
the task of devising permanent rules for counting the elec¬ 
toral vote, and finally in 1887 it passed an elaborate act 
w^hich now regulates the electoral count. In brief, it places 
the responsibility so far as possible on the state authorities, 
and provides that the determination of each state as to 
how its electoral vote was cast shall, under certain condi¬ 
tions, be final. If, however, a state neglects to settle its 
own election contests, and double returns are transmitted 
to the president of the senate, the two houses of Congress 
sitting separately must determine how the votes shall be 
counted. But if the two houses fail to agree, as they did in 
counting the vote of 1876, then the vote of the state is 
lost. The day fixed by Congress for opening and counting 
the vote is the second Wednesday in February. 

Election by the House.—In case no candidate receives 
a majority of the electoral votes, the choice devolves upon 
the house of representatives. But in that case the house 
votes by states, each state having one vote, irrespective 
of its number of representatives, and the choice is made from 
the three candidates standing highest on the list. ^ A 
quorum for the election of a President by the house con- 

1 It was from the five highest before the adoption of the Twelfth 
Amendment in 1804. 


284 THE PRESIDENCY: MODE OF ELECTION 

sists of a member or members from two thirds of the states, 
and the vote of a majority of all the states is necessary to a 
choice. 

Objections to Election by the House .—The objections to 
this method of choice are obvious. It is undemocratic, 
because the house on which the choice would devolve in 
any case would be, not the new house chosen at the recent 
election, but the old house, which might indeed, as has often 
happened, be in the hands of the political party defeated at 
the late election. In the second place, under such a scheme. 
New York with a population over 100 times as great as 
that of Nevada would have no larger share in choosing the 
executive. In 1873, example, had the choice devolved 
upon the house, it would have been possible for 45 mem¬ 
bers (being a majority of the representatives of nineteen 
states) to determine the choice in spite of the wishes of 
the other 147 members. The election might thus have 
rested with the representatives of 8,000,000 people as 
against the representatives of 30,000,000. 

Instances of Choice by the House .—Twice has the electoral 
college failed to make a choice, thus giving the election to 
the house of representatives. 

In 1801, there was a tie between Jefferson and Burr, each 
having the vote of a majority of the electors. There were 
then sixteen states, of which eight voted for Jefferson, six 
for Burr, and two were evenly divided. The balloting 
lasted for more than a week, during which thirty-five votes 
were taken. Finally on the thirty-sixth ballot the two di¬ 
vided states cast their ballots for Jefferson and he was 
elected, as the electors had originally intended. 

The, second instance occurred in 1825, when the electoral 
vote stood as follows: for Jackson 99; for Adams 88; for 
Crawford 41; and for Clay 37, no one having a majority. 


ELECTION BY THE HOUSE 


285 

Under the Twelfth Amendment Clay was dropped from 
the list and the choice was confined to the three highest 
candidates. There were then twenty-four states, and of 
these the representatives of thirteen voted for Adams, seven 
for Jackson, and four for Crawford. 

Election of the Vice President by the Senate. —The Con¬ 
stitution also provides that if no candidate for Vice Presi¬ 
dent receives a majority of the electoral vote the choice 
shall devolve upon the senate, in which case the election 
shall be made from the two highest on the list. Two thirds 
of the senate constitute a quorum for this purpose, and a 
majority of the whole number is necessary to a choice. Only 
once has the choice devolved upon the senate, namely, 
in 1836, when Richard M. Johnson, candidate for Vice 
President on the ticket with Mr. Van Buren, failed to re¬ 
ceive a majority of the electoral vote. He was promptly 
elected by the senate. 

Methods of Nomination. —Neither the Constitution nor 
the laws of the United States make any provision in regard 
to the nomination of the candidates for President and Vice 
President. That is left entirely to the regulation of the 
political parties themselves. In the early history of the 
republic, before political parties had risen, no nominating 
machinery was devised, for none was needed. 

Early Methods ,—With the rise of political parties, how¬ 
ever, the method of nomination by congressional caucus 
was introduced; that is, the members of Congress belong¬ 
ing to each political party assumed the power of selecting 
its candidate in secret conclave. In this way Jefferson was 
nominated by the Republican members of Congress in 
1800 and 1804, Madison in 1808 and 1812, and Monroe 
in 1816 and 1820. In the same way the Federalist mem¬ 
bers put forward their candidates. In some cases, however, 


286 


THE PRESIDENCY: MODE OF ELECTION 


presidential candidates were nominated by state legisla¬ 
tures. In the course of time, strong opposition grew up 
against the method of nomination by members of Congress, 
and after 1824 the caucus system was never again resorted 
to. The new nominating machinery which took its place 
was the national convention, which came into use between 
1831 and 1840. 

The National Convention. —A national convention to 
nominate candidates for President and Vice President is 
composed of delegates from each state and territory in the 
Union, the number to which each is entitled being usually 
twice its number of senators and representatives in 
Congress.^ Altogether the national convention consists of 
about 1,000 delegates. For each delegate there is an al¬ 
ternate who attends the convention and in case of the ab¬ 
sence of the delegate, takes his place. 

Methods of Choosing Delegates .—The rules of the Dem¬ 
ocratic and Republican parties in regard to the method of 
choosing delegates differ in one important particular. The 
call issued by the Republican national committee for the 
election of delegates specifies how they shall be chosen, the 

^ Apportionment of delegates among the states on the basis of their 
representation in Congress bears no relation to the party strength. 
Thus Mississippi sent twenty delegates to the national Republican 
convention in 1904, although the state cast less than 3,000 votes 
toward the election of the Republican candidate for President. For 
some years there has been a growing sentiment in the ranks of the 
Republican party in favor of reducing the representation in the 
national convention of the Southern states where the Republican 
party is practically nonexistent and in the national convention of 
1908 a resolution to that end was introduced. While the vote in 
favor of it was large, the resolution was rejected, largely on account 
of the appeals of the colored delegates for the retention of the present 
system. 


THE NATIONAL CONVENTION 


287 

call usually stating that the four delegates at large shall 
be selected by the state convention of the party, and the 
other delegates by congressional district conventions. 
Where direct primary laws are in force, however, the dele¬ 
gates from the congressional districts are allowed to be 
selected by the voters of the party at the primary. The 
rules of the Democratic party, on the other hand, leave 
the party in each state to choose its delegates in such way 
as it may wish. 

The Time and Place for holding the national convention 
are fixed by the national committee. The date usually falls 
in the latter part of June or early in July of the year the 
President is to be elected. The place is usually some large 
city centrally located, the amount of the contribution of¬ 
fered by the city usually being taken into consideration. 

Procedure of a National Convention.—The convention is 
usually held in some spacious building especially erected 
for the purpose, since few cities possess structures large 
enough to accommodate so enormous an assembly. Be¬ 
sides the delegations of the states, there are the alternates, 
hundreds of politicians who are not delegates, newspaper 
reporters, and thousands of spectators from all parts of the 
country, for all of whom accommodations are sought to be 
provided. In recent years the national convention has 
grown to be so large and unwieldy that calm procedure has 
been almost impossible, and it has been seriously proposed 
to exclude spectators wholly or in part. 

Organization of the Convention .—The convention is called 
to order by the chairman of the national committee, and 
the secretary of the committee reads the call for the con¬ 
vention. Next come the choice of a temporary chairman, 
and the appointment and report of committees on cre¬ 
dentials, on permanent organization, on rules, and on res- 


288 THE PRESIDENCY: MODE OF ELECTION 

olutions much as in the state conventions described on 
PP- 153-155- 

The Platform is a series of resolutions commending the 
national administration, or denouncing it, as the case may 
be, and setting forth the position of the party on the politi¬ 
cal issues of the day. Declarations are often made in the 
platform to attract or conciliate large masses of voters, 
sometimes when there is no real intention of carrying them 
out. The platform is usually adopted by the convention 
as reported by the committee on resolutions, but some¬ 
times important changes are made on the floor after a 
spirited contest. 

The Nominations .—After the adoption of the platform, 
the nomination of candidates for President is in order. 
The clerk calls the roll of the states in alphabetical order 
so that each is given an opportunity to present the name of 
its choice. The vote is then taken by a roll call of the 
states, the chairman of each state delegation usually an¬ 
nouncing the vote of the state. Under the rules of the 
Republican party the delegates vote as individuals, so 
that the vote of a state is often divided between two or 
more candidates, unless the conventions which appointed 
the delegates have instructed them to cast the vote of the 
state for a particular candidate. According to the rules 
of the Democratic party, the state delegations vote as 
units and not as individuals, consequently there can be 
no division of a state’s vote. The majority of each dele¬ 
gation in such case determines how the vote shall be cast. 
This is known as the “unit rule.” The Democratic and 
Republican parties also differ in determining the majority 
necessary to nominate a candidate. 

The Vote Necessary to Nominate .—According to the rules 
of the Republican party, a majority of the delegates is 


PROCEDURE OF A NATIONAL CONVENTION 289 

sufficient to nominate, but under the rules of the Demo¬ 
cratic party the concurrence of two thirds of the delegates 
is required. Thus if there are 1,000 delegates in the con¬ 
vention, 501 may nominate under the Republican rule, 
while 667 would be required under the rules of the Demo¬ 
cratic party. The large majority necessary to nominate 
in the Democratic convention has often resulted in the 
defeat of the leading candidate and the nomination of a 
‘‘dark horse,” that is, a candidate whose name has not 
-been previously presented to the convention or which has 
not been prominently kept before it. Presidents Polk and 
Pierce were nominated in this way. 

Nomination of Vice President. —Usually there is little 
contest over the nomination of the Vice President, the 
nomination usually being given to some one supported by 
a defeated faction or group of the party, or to a particular 
section of the country. Thus if the presidential nomina¬ 
tion goes to an Eastern man, the vice presidential nomina¬ 
tion is given to a Western man. In view of the compara¬ 
tively large number of Presidents who have died in office 
it is to be regretted that so little consideration is given to 
the nomination of candidates for Vice President. 

Notification of the Candidates. —The candidates are for¬ 
mally notified'some weeks later by a committee specially ap¬ 
pointed for the purpose. The nominee in a formal speech 
accepts the nomination and pledges himself to support the 
platform. Usually this is followed by a letter of acceptance 
in which the views of the candidate are elaborated more at 
length. This completes the formalities of nomination, and 
the next step is to inaugurate the campaign for the election 
of the nominees. 

Conduct of a Presidential Campaign.— The National 
Committee.—Tht main task of managing the campaign 
Govt. U. S.—19 


THE PRESIDENCY: MODE OF ELECTION 


290 

falls on the chairman of the national committee. This 
committee is made up of one member from each state and 
territory, and is chosen by the national convention which 
nominates the candidates.^ The chairman is usually an 
experienced political leader with a wide acquaintanceship, 
and is a trusted friend of the presidential candidate, by 
whom, in fact, he is usually selected. 

Soon after the adjournment of the convention, the na¬ 
tional committee meets and organizes. In addition to the 
national chairman a treasurer and a secretary are chosen. 
The treasurer raises and has custody of the enormous funds 
expended in the conduct of the campaign. As the national 
chairman may be compared to a general who commands 
the forces, the treasurer is the man who raises the sinews 
of the war. 

Work of the National Committee .—The headquarters of 
the committee are usually established in New York city, 
with branch offices in Chicago or Washington, though 
during the campaign of 1908 the principal headquarters 
were located in Chicago. The work of the committee is 
usually divided among bureaus or divisions, one of which 
has charge of the mailing of campaign literature, another is 
engaged in the tabulation of reports, another looks after 
the employment and assignment of speakers, another has 
charge of the organization of voters’ clubs throughout the 
country, etc.^ Large quantities of campaign literature, 
consisting of a ‘‘Campaign textbook,” speeches of the can- 

1 In reality each state delegation names one of its own number as 
the national committeeman from the state, and the committee thus 
constituted is appointed by the convention. 

2 In 1908, the Democratic national committee had a labor bureau 
to look after the labor vote, and a committee on college men’s clubs 
to look after the organization of college students into voters’ clubs. 


CONDUCT OF A PRESIDENTIAL CAMPAIGN 291 

didates or of members of Congress, pamphlets, leaflets, 
posters, lithographs, and in fact everything calculated to in¬ 
fluence the voters, are sent broadcast throughout the coun¬ 
try and particularly in the close or doubtful states where 
the principal efforts of the committee are concentrated.^ 

Activity of the Presidential Candidate .—Formerly it was 
not considered proper for the presidential candidates them¬ 
selves to take an active part in the campaign by traveling 
about the country and making speeches, but in recent 
years there has been a change in this respect. Mr. Bryan 
in 1896 traveled about the country and delivered hundreds 
of speeches in behalf of his candidacy, and he pursued a 
similar course in 1900 and again in 1908 when he was the 
Democratic candidate. In the latter year, Mr. Taft, the 
Republican candidate, likewise entered actively into the 
campaign and delivered more than 400 speeches in thirty 
different states. 

Raising and Expenditure of Campaign Funds. —The 

management of a national political campaign requires the 
expenditure of large sums of money for printing, postage, 
telegrams, express, rent of halls, music, expenses of speak¬ 
ers, organizing clubs, and the like. This money is spent 
solely under the direction of the national chairman, who, 
heretofore, has never been required to render an account 
of the moneys contributed for this purpose. 

The Raising of Campaign Funds .—Prior to 1884 the ex¬ 
penditures on account of a national campaign were com- 

Tn 1908, more than one million copies of Mr. Bryan’s speech 
‘‘Shall the People Rule” were distributed, printed in all languages 
spoken in the United States. Another million copies of his speeches 
on the trusts, the tariff, guarantee of bank deposits, and injunc¬ 
tions were also circulated. In the contest of 1908 the phonograph 
was employed for the fir-st time fpr campaign purposes. 


292 


THE PRESIDENCY: MODE OF ELECTION 


paratively small and were raised by the party in power 
largely by assessments on federal officeholders; but the 
civil service law enacted in the year previous forbade 
assessments of this kind and thus cut off an important 
source of supply. More attention then began to be turned 
toward the great corporations, many of which desired to 
become the beneficiaries of special legislation or to secure 
immunity from government interference with the manage¬ 
ment of their business. In a recent campaign, one cor¬ 
poration, a life insurance company, contributed $200,000; 
one railroad company gave $100,000; and many others 
$50,000. Sometimes a corporation contributes equally to 
the campaign funds of both parties, on the principle that 
it is a wise policy to be on good terms with each. 

Contributions of Corporations now Forbidden. —The rais¬ 
ing and spending of so much money as a part of the process 
of electing a President has recently given rise to a demand 
that the sources of national campaign contributions should 
be made public. Moreover, it is coming to be regarded 
as an evil that the large corporations who desire beneficial 
legislation or immunity from prosecution should have be¬ 
come the chief contributors to campaign funds. This feel¬ 
ing led to the enactment by Congress in 1907 of a law for¬ 
bidding national banks and other corporations which have 
charters granted by Congress, from making contributions 
to the campaign funds of any party at any election, na¬ 
tional, state, or local. The law also prohibits any corpo¬ 
ration, whether chartered under the authority of the 
national government or not, from making campaign con¬ 
tributions at any election at which the President of the 
United States or any member of Congress is to be chosen. 

Publicity of Campaign Contributions. —In 1910 Congress 
passed a law requiring the treasurer of each national party 


RAISING AND EXPENDITURE OF CAMPAIGN FUNDS 293 

committee to make a sworn statement of all contributions 
received by him and to publish the same after the election. 
This legislation marks a great advance in our methods of 
conducting a presidential campaign, and it is to be hoped 
that Congress will in the near future go further and require 
publication of campaign contributions before the election, 
and that it may also specify the purposes for which money 
may be spent in a national campaign, as many of the states 
have already done in regard to state and local elections. 
So long as publication is not required until after the elec¬ 
tion, much of the advantage to be derived from publicity 
will be lost. 

The Succession to the Presidency.—The Constitution 
declares that in case of the removal of the President from 
office, or of his death, resignation, or inability to discharge 
the powers and duties of his office, the same shall devolve 
upon the Vice President. In case of the removal, death, 
resignation, or inability of both the President and the Vice 
President, Congress is authorized to provide for the suc¬ 
cession. The only way in which the President may be 
removed is by impeachment and conviction. President 
Johnson was impeached, mainly for the violation of the 
tenure of office act, but the senate failed by one vote to 
convict him. Had he been convicted his office would have 
been declared vacant. There has been no instance of the 
resignation of a President.^ Five Presidents have died in 
office: Harrison, Taylor, Lincoln, Garfield, and McKinley. 
In each case the dead President was succeeded by the Vice 
President. No case of inability to discharge the duties of 

^ John C. Calhoun resigned the Vice Presidency to become a senator 
from South Carolina. The statutes provide that the President shall 
signify his resignation, in case he resigns, by a letter to the secretary 
of state. 


.294 ™E PRESIDENCY: MODE OF ELECTION 

the presidential office has ever been construed as existing, 
though in fact such a case existed from July 2, 1881, when 
President Garfield was shot, to September 19, when he 
died. A similar case existed during the period in which 
President McKinley lingered on his deathbed, from Sep 
tember 6 to September 14, 1901. In neither case did the 
Vice President assume the reins of office until death had 
made the office vacant. 

Succession Law of iyg2 ,—Congress provided by law in 
1792 that in case of the removal, death, resignation, or 
inability of both the President and the Vice President, the 
president pro tempore of the senate should succeed, and after 
him the speaker of the house. There were several practical 
and political objections to this arrangement, however. In 
the first place, there might be considerable periods of time 
when there was no president pro tempore of the senate or 
speaker of the house, and consequently no one to succeed in 
case of a vacancy.^ Another objection to the law—^po¬ 
litical in character—was illustrated by the situation that 
existed in 1886. The Democratic Vice President Hendricks 
had died, and in case the presidential office had become 
vacant it would have been filled by a Republican president 
of the senate. Thus the executive branch of the govern¬ 
ment would have passed from the hands of the party that 
had carried the country at the last election, to the other 
party, merely by the death of a public officer. 

^ From March 4 to October 10, 1881, there was no president of the 
senate, and from March 4 to December 15 of the same year there was 
no speaker, the new house not having met and organized. Had Vice 
President Arthur died or been removed from office before Mr. Gar¬ 
field’s death there would have been no one to succeed to the vacancy 
until October 10, when a new president pro tempore of the senate 
was chosen. 


THE SUCCESSION TO THE PRESIDENCY 


295 


Succession Act of 1886. —Congress, therefore, changed the 
law so as to give the succession to the presidency to the 
members of the cabinet, in the order of the creation of their 
departments, in case of the death or removal of both the 
President and the Vice President. As the members of the 
cabinet usually belong to the same party as the President 
and Vice President, the office in such a contingency would 
remain in the control of the party which elected the Presi¬ 
dent at the last election. No special provision has yet 
been made, however, in regard to the succession in case 
the President elect and Vice President elect should die 
after their election by the electoral college on the second 
Monday in January and before their inauguration on the 
4th of March. The electoral college could not be recon¬ 
vened because it becomes functus officio immediately after 
electing the President. As the law stands, the succession 
would probably go to some member of the old cabinet, who 
might be of the opposite party. In such a case, however. 
Congress might provide for a special presidential elec¬ 
tion. 

References.— Andrews, Manual of the Constitution, pp. 166-177. 
Beard, American Government and Politics, ch. ix. Bryce, The 
American Commonwealth (abridged edition), chs. vi, vii, lii-liv. 
Fuller, Government by the People, ch. vii. Harrison, This Country 
of Ours, chs. iv-v. Hart, Actual Government, pp. 261-267. Hins¬ 
dale, American Government, chs. xxix-xxxi. Stanwood, History 
of the Presidency. Woodburn, The American Republic, pp. 116- 
136. 

Documentary and Illustrative Material.—i. Congressional Direc¬ 
tory. 2. Copy of the call for a national convention. 3. Addresses 
of the temporary and permanent chairman of the last national con¬ 
vention. 4. The Democratic and Republican campaign textbooks. 
5. Copy of the election returns. 6. Specimen ballots containing the 
names of candidates for presidential electors. 


296 


THE PRESIDENCY: ORGANIZATION, ETC. 


Research Questions 

1. How many votes is your state entitled to in the electoral college? 
What proportion of the total electoral vote is that? Can you give 
the names of any of the presidential electors from your state at the 
last election? 

2. What was the popular vote »received by the Republican candi¬ 
date for President in your state at the last election? By the Demo¬ 
cratic candidate? 

3. Name the Presidents who received only a minority of the popu¬ 
lar vote. 

4. Suppose a vacancy should occur in the electoral college of a state 
by the death of an elector, is there any way by which it could be filled? 

5. Suppose the candidate for President should die after the popular 
election in November and before the meeting of the electors in Janu¬ 
ary, for whom would the electors cast their vote? Have there been 
any actual instances of this kind? 

6. Suppose the President elect should die before the votes are 
opened and counted by Congress, who would be declared President? 

7. Have there been any instances since 1820 in which a presiden¬ 
tial elector voted against the candidate of his own party? 

8. What would be the principal advantage in extending the term 
of the President and making him ineligible to succeed himself? 

9. Do you think the custom a wise one which prohibits the Presi¬ 
dent from serving more than two terms? 

10. What were the controversies at issue in the disputed election of 
1876? 

11. What were the objections to the method of nomination by con¬ 
gressional caucus? Who was the last candidate to be nominated by 
this method? 

12. Tell something about the first national convention held in the 
United States for the nomination of candidates for President and 
Vice President. 

13. How many parties nominated candidates for President and 
Vice President in the last presidential election? Give the popular 
vote received by each, in your state and in the country as a whole. 

14. Read the platforms of each party and contrast their positions 
on the leading political issues. 

15. How many delegates is your state entitled to in the national 


RESEARCH QUESTIONS 


297 


convention? Who were the delegates at large from your state in the 
last Democratic national convention? In the last Republican na¬ 
tional convention? 

16. Where did the Democratic and Republican parties hold their 
last national conventions? Who was the permanent chairman of 
each? 

17. What is your opinion of the “unit rule” followed by the Demo¬ 
cratic party? Of the “two-thirds” rule? 

18. Do you think it would be a wise rule to apportion the delegates 
from each state to the national convention on the basis of the party 
strength rather than on the basis of population? 

19. Since the people of the territories take no part in national elec¬ 
tions, ought they to be allowed to send delegates to the national 
convention? 

20. What is your opinion of the proposal to nominate candidates 
for President and Vice President by direct primary as state officials 
are nominated in many states? 

21. What is meant by the doctrine of “availability” in choosing 
candidates for President? What presidential candidates has your' 
state furnished? 

22. Is Mr, Bryce’s assertion that great men are rarely elected 
President true? If so, why? 

23. Do you think presidential candidates should make campaign 
tours and deliver campaign speeches? 


CHAPTER XVI 


THE PRESIDENCY (CONTINUED): INAUGURATION; POWERS 
AND DUTIES 

The Inauguration.—It is no longer the practice to notify 
the President officially of his election, and so without cer¬ 
tificate of election or commission, he presents himself at 
the national capital on the 4th of March to take the oath 
of office required by the Constitution and to enter upon the 
discharge of his duties. Toward noon on that day he pro¬ 
ceeds to the White House, as the official residence of the 
President is styled, where he joins the outgoing President 
and both are driven to the Capitol, followed by a proces¬ 
sion. The oath of office is usually administered by the 
Chief Justice of the Supreme Court on a platform erected 
for the purpose at the east front of the Capitol, and in the 
present of a vast throng of spectators from all parts of the 
country.^ Following the custom set by the first Chief 
Executive, the President delivers a short inaugural address 
in which he foreshadows in a general way h:s policy as 
President, after which he returns with the Ex-President to 
the White House, where he reviews for several hours the 
procession of visitors. 

1 The oath of office was administered to President Washington in 
New York city, then the temporary seat of government, by Chancellor 
Livingston of New York state. A Bible is used in administering the 
oath, an open page of it being kissed by the President. 


THE INAUGURATION 


299 

Inaugural Pageantry .—The inauguration of the Presi¬ 
dent is made the occasion of a great pageant, to which 
hundreds of thousands of visitors throng frqm every part 
of the Union. In the procession which escorts the President 
to the Capitol are militia companies, headed by governors 
of states, and civil organizations' of every variety. Owing 
to the inclemency of the weather which often prevails at 
this season of the year, it has been proposed to change the 
date of the inauguration, but since this will involve an 
amendment to the Constitution if the inauguration is to 
take place at the beginning of the presidential term, the 
success of the movement is doubtful.^ 

Compensation of the President.—The Constitution de¬ 
clares that the President shall, at stated times, receive for 
his services a compensation, but in order to make the ex¬ 
ecutive independent of Congress in this respect and at the 
same time to remove the temptation of Congress to enter 
into deals or bargains with him in regard to legislation, 
the Constitution declares that the amount of the salary 
shall neither be increased nor diminished during the time 
for which he has been elected. He is also forbidden to 
receive any other emolument either from the United States 
or from any state. 

The salary of the President was first fixed at $25,000 a 
year, at which amount it remained until the beginning of 
Grant’s second term in 1873, when it was raised to $50,000. 

^ When Vice Presidents Tyler, Johnson, Arthur, and Roosevelt 
succeeded to the presidency, Congress was not in session and the 
oath of office was administered without formalities. Mr. Arthur took 
the oath in New York city before a local magistrate, and Mr. Roose¬ 
velt did the same in Buffalo, where Mr. McKinley died. Vice Presi¬ 
dent Fillmore, however, took the oath of office as President in the 
presence of both houses of Congress, which happened to be in session 
at the time of the death of President Taylor. 


THE PRESIDENCY: INAUGURATION, ETC. 


300 

In 1909 it was raised to $75,000. Besides this salary there is 
an additional allowance of $25,000 a year for traveling ex¬ 
penses, and there are allowances for clerks, horses, car¬ 
riages, house furnishings, care of grounds, fuel, lighting, 
printing, etc., making in the aggregate some $250,000 a 
year. In the executive mansion, or White House, the na¬ 
tion furnishes the President with both a private and an 
official residence. 

Extent of the President’s Powers.—The powers of the 
President are partly conferred by the Constitution, partly 
by acts of Congress and treaties, and are partly the result 
of usage and precedent. The sum total of his powers is 
very great, much greater, in fact, than those of most con¬ 
stitutional monarchs, who are largely under the control of 
ministers. The power which has been wielded at any given 
time, however, has depended upon the personality of the 
President and the extent to which he enjoyed the confi¬ 
dence of Congress and the people. Some Presidents have 
been weak and lacking in aggressiveness; others have been 
men of great force and initiative and have by construc¬ 
tions of the Constitution increased their powers to a large 
extent. Again, the power which may be rightfully exer¬ 
cised depends upon the state of affairs under which the 
office is administered. In time of war, especially if it be 
civil war or rebellion, the power of the President may be 
so expanded as to be limited in effect only by the necessi¬ 
ties of the national existence. Thus the powers wielded by 
President Lincoln were probably greater than those exer¬ 
cised by any other ruler of the English race, whether King 
or President, since Cromwell governed England. 

Classes of Powers.—The powers and duties conferred on 
the President by the Constitution and the laws may be 
grouped under the following heads: 


CLASSES OF POWERS 


301 


1. The power a-nd duty of executing the laws, including 
the power to appoint, direct, and remove public officers. 

2. The management of the foreign affairs of the country. 

3. The .power to command the army and navy. 

4. Legislative powers, including the sending of messages 
to Congress, the calling of extra sessions, and especially the 
power to veto acts of Congress. 

5. The power to grant pardons for offenses against the 
laws of the United States. 

Execution of the Laws.—The President is the head of 
the executive branch of the government, and it is his duty 
to see that the Constitution is preserved, protected, and 
defended, and that the laws enacted in pursuance thereof, 
the treaties made under its authority, and the decisions 
rendered by the federal courts are enforced throughout the 
United States. For these purposes the army, the navy, 
and the militia are at his disposal, and in case of resistance 
to the laws and authority of the United States, they may 
be employed by him in such manner as he may direct, 
to overcome such resistance. Moreover, nearly all the 
civil and military officers of the United States are appointed 
by him and are, to a large degree, subject to his direction. 

The President's Responsibility .—Unlike the state govern¬ 
ments, the national government is so organized as to con¬ 
centrate the power and the responsibility for the enforce¬ 
ment of the laws in the hands of a single executive. Those 
who are charged with aiding him in carrying out the gov¬ 
ernment are his own appointees, and their responsibility is 
primarily to him alone. 

Power of Appointment.—The Constitution declares that 
the President shall, with the “advice and consent” of the 
senate, appoint all officers of the United States whose ap¬ 
pointment is not otherwise provided for by the Constitu- 


302 


THE PRESIDENCY: POWERS ANl 3 DUTIES 


tion, except that Congress may vest the appointment of 
inferior officers in the President alone, in the courts of law, 
or in the heads of departments.^ This is one of the most 
important powers devolving upon the President, and proba¬ 
bly consumes more of his time than all his other duties 
together. In the early days of the Constitution, the num¬ 
ber of appointments was small, but as the government 
service expanded, the number of offices to be filled steadily 
increased until there are now more than 6,000 important 
presidential offices, that is, offices filled by the President 
and the senate. The tenure of office act of 1820 fixed the 
terms of the great bulk of federal offices at four years, and 
even where the term is not prescribed by statute, it is the 
custom for appointees to be replaced at the expiration of 
four years, so that in practice the four-year tenure is uni¬ 
versal, except for federal judges, and each President must 
during his term make appointments to nearly all the 
presidential offices. In making these appointments he is 
not limited by any constitutional or statutory require¬ 
ments in regard to qualifications. He is the sole judge of 
the fitness of candidates for appointments. The only 
limitation upon his power is the necessity of securing the 
approval of the senate, a requirement already discussed in 
chapter x, pages 190-191. 

Appointments to Minor Positions, such as third and fourth- 
class postmasterships, are usually made upon the recom¬ 
mendations of the representative in Congress from the 
district in which the office is located. Obviously the Presi- 

^ The only officers appointed by the courts of law are clerks, re¬ 
porters, and other minor ministerial officers; but there are a large 
number of inferior officers in the various departments, such, for ex¬ 
ample, as fourth-class postmasters, who are appointed by the heads 
of departments. 


POWER OF APPOINTMENT 


303 


dent or the head of the department could not fill the thou¬ 
sands of minor positions of this sort without reliance upon 
the advice of others. They cannot investigate personally 
every application for appointments of this kind. It is natu¬ 
ral, therefore, that they should accept the recommendations 
of members of Congress, who are more apt to be acquainted 
with the qualifications of applicants in their districts, and 
who are familiar with local conditions. 

Power of Removal.—While the Constitution expressly 
authorizes the President to appoint officers, with the con¬ 
sent of the senate, it is completely silent on the question 
of whether he may remove an officer, either with or with¬ 
out the consent of the senate. The only provision in the 
Constitution in regard to removal is that which relates to 
impeachment. It might, therefore, be contended that the 
only constitutional method of depriving an incumbent of 
an office to which he has been appointed is by impeach¬ 
ment. But this process of removal is so cumbersome and 
unwieldy that if it were the only means of getting rid of in¬ 
competent office-holders many unfit persons would remain 
in office indefinitely, and, besides, it would be impossible for 
the President, upon whom the responsibility for the enforce¬ 
ment of the laws rests, to surround himself with officials fn 
whose integrity and fitness he has confidence. Moreover, 
to resort to the process of impeachment to remove a 
person from a petty inferior office would be very much like 
shooting birds with artillery intended for destroying battle¬ 
ships. 

From the first, therefore, it was recognized that there 
was another process of removal than by impeachment. 
But there was a difference of opinion as to whether that 
power lay with the President alone, or whether he could re¬ 
move only with the consent of the senate, as in the case of 


304 


THE PRESIDENCY: POWERS AND DUTIES 


appointments; or whether the power lay with Congress to 
prescribe how removals might be made. The matter was 
threshed over in the first Congress after the Constitution 
went into effect, and it was decided that the President 
might remove alone, without the necessity of securing the 
consent of the senate. But there was considerable fear 
that he might abuse the power, and Madison is said to 
have declared that the wanton removal of a meritorious 
officer would subject him to impeachment. 

Early Practice .—For a long time the power of removal 
was used sparingly. Several of the early Presidents, in 
fact, made no removals at all, and during the first forty 
years of our national existence the total number of officers 
removed probably did not exceed loo. With the incoming 
of President Jackson, however, what is known as the spoils 
system was introduced; that is, large numbers of office¬ 
holders were removed in order to make places for those 
who had rendered political services to the party in power. 
Henceforth appointments were made largely as rewards 
for party service, with little regard to merit and fitness. 
Nevertheless, the right of the President to make removals 
for any cause that seemed to him proper, or for any cause 
whatsoever, continued to be recognized and acquiesced in 
by all parties until the breach occurred between President 
Johnson and Congress. 

Act of 186 ^.—The action of President Johnson in remov¬ 
ing officials who were in sympathy with Congress greatly 
offended that body, and in 1867 a tenure of office act was 
passed forbidding the President to make removals except 
with the consent of the Senate.^ Thus the custom which for 

1 While Congress was not in session, the President was to be allowed 
the right to “suspend” officers for good cause, but he was required to 
report all suspensions to the Senate at its next meeting and in case 


POWER OF REMOVAL 


305 


seventy-eight years had recognized the unlimited right of 
the President to remove officers without the necessity of se¬ 
curing the consent of the senate was now reversed. The 
violation of this law by President Johnson was the chief cause 
of his impeachment in 1868. With the incoming of President 
Grant, however, the law was modified, and in 1887 it was 
repealed. Thus after a brief interval the original interpre¬ 
tation was reverted to, and it has been followed ever since. 

The Present Rule .—The right of the President to remove 
any federal officer appointed by him, except the judges, 
for any cause whatsoever, is now recognized, and Congress 
cannot abridge that right by prescribing the conditions 
under which removals may be made. His power in this 
respect is absolute and unlimited and may be employed 
for rewarding his political friends and punishing his enemies 
as well as for getting rid of incompetent and unfit persons 
in the public service. 

Power of Direction.—Resulting from the power of re¬ 
moval is the power of the President to direct the officers 
whom he appoints, in regard to the discharge of their 
duties. Through the threat of removal, he may compel 
obedience to his orders, though of course he cannot re¬ 
quire an officer to do an act which would amount to a vio¬ 
lation of the law. Many of the duties of federal officers 
are prescribed by law, and the President cannot change 
these duties or require an officer to do his duty differently 
from the way in which the law requires him to do it. But 
the law expressly recognizes that the President has the 
power to direct many officers as to their duties. Thus the 
secretary of state in the negotiation of treaties and the 
settlement of disputes with foreign countries is almost 
it refused to concur in the suspension, the suspended officer was to 
be allowed to resume his office. 


Govt. U. S.—20 


3o6 the PRESIDENCY; POWERS AND DUTIES 

wholly under the control of the President. The President 
may instruct him to begin negotiations with a particular 
government or to cease negotiations, and the secretary 
must obey his orders. So the President may direct the 
secretary of war in regard to the disposition of the armed 
forces. In the same way he may order the attorney-general 
to prosecute a “trust” or institute proceedings against 
any violator of the federal laws, or may direct him to drop 
proceedings once begun. Some officers, however, such as 
the secretary of the treasury and the postmaster-general, are 
less under the direction of the President, their duties being 
prescribed with more or less detail by acts of Congress.^ 

The Civil Service System.—For a half century following 
the introduction of the spoils system by President Jackson, 
both parties acted on the principle that the offices of the 
federal government were the legitimate spoils of victory 
at the polls. Under such circumstances the public service 
was demoralized and enfeebled, and the time of the Presi¬ 
dent and heads of the departments was taken up with 
considering applications for office when it should have 
been devoted to more important matters. After the Civil 
War, a movement was started which had for its purpose 
the establishment of the merit system in the public service 
and the elimination of the spoils system. 

The Civil Service Law of i88j .—The assassination of 
President Garfield in i88i by a disappointed office seeker 
aroused public opinion to some of the worst evils of the 
existing system, and in obedience to the demands of pub- 

1 The act organizing the treasury department requires the secre¬ 
tary of the treasury to make his annual report to Congress, while 
the other cabinet heads make their reports to the President. It was 
the evident intention of Congress to keep the secretary of the treasury 
more closely under the control of the representatives of the people. 


THE CIVIL SERVICE SYSTEM. 


307 


lie sentiment, Congress in 1883 enacted the civil service 
law which forms the basis of the present civil service sys¬ 
tem. This law provided for the creation of a commission 
of three persons, not more than two of whom should belong 
to the same political party. The commission was charged 
with forming rules for making appointments to the pub¬ 
lic service. 

The Classified Service .—The act provided for the classi¬ 
fication of the positions in the departments at Washington 
and in the customhouses and post offices where at least 
fifty persons were employed, and for the holding, under the 
supervision of the commission, of competitive examinations 
to test the fitness of applicants for appointments to posi¬ 
tions in the classified service. -The classified service now 
includes the departmental service at Washington, the cus¬ 
toms service, the post office service, the railway mail serv¬ 
ice, the Indian service, the internal revenue service, and 
the government printing service. The first two groups in¬ 
clude about eighty per cent of all the competitive positions 
under the civil service rules. 

Extent of the Classified Service .—At first the law applied 
to only about 14,000 positions, but since then the number 
has been increased from time to time by the creation of 
new offices and by orders of successive Presidents extend^ 
ing the rules to other classes of positions. A large extension, 
for example, was made by order of President Cleveland' 
in 1896. President Roosevelt, who was at one time a mem¬ 
ber of the commission, also made large extensions, so that 
when he went out of office there were about twice as many 
positions under the rules as there were when he became 
President. Of some 350,000 employees in the government 
civil service, more than 200,000 are now under the classified 
service rules. 


3d8 the PRESIDENCY: POWERS AND DUTIES 

Exempt Positions .—Among the positions not under the 
rules and for which competitive examinations are not re¬ 
quired are the more important presidential offices such as 
cabinet officers, assistant secretaries, chiefs of bureaus, 
United States attorneys, marshals, judges, ambassadors 
and ministers, besides a large number of minor officials like 
fourth-class postmasters, private secretaries, and employees 
whose duties are of a confidential or fiduciary character. 

Examinations .—Regular service examinations are held 
at least twice each year in every state and territory by local 
boards of examiners, and any citizen of the United States is 
eligible to take the examination for any position to be 
filled, and without the payment of a fee for the privilege. 
The commission keeps a list of eligibles, that is, of persons 
who have passed an examination, and whenever an ap¬ 
pointment is to be made, it certifies to the appointing au¬ 
thority a list of those who are qualified, and from the three 
standing highest on the list the appointment must be made. 
But in making the appointments preference must be given 
to persons honorably discharged from the military or naval 
service. The examinations are required to be practical 
in character and of such a nature as to test, as far as possi¬ 
ble, the capacity and fitness of the applicants to discharge 
the duties of the position for which they desire an appoint¬ 
ment. 

' Vacancies occurring in the service are filled by appoint¬ 
ment from those persons standing highest on the eligible 
list. No appointment is permanent until after six months 
of probationary service, during which time the appointee 
must have demonstrated his capacity to discharge the 
duties of the office. Appointments to positions in the de¬ 
partments at Washington are apportioned among the 
states and territories upon the basis of population. The 


THE CIVIL SERVICE SYSTEM 


309 


law also prohibits members of Congress from making rec¬ 
ommendations for appointments to positions in the classi¬ 
fied service except as to the character and residence of the 
applicant, and also forbids the levying of assessments on 
government employees for campaign purposes or the so¬ 
licitation of contributions from employees^ 

How Removals are Made .—When an appointment has 
been made in pursuance of the civil service rules, the ap¬ 
pointee is protected from removal for political reasons. 
The rules now in force declare that removals from the com¬ 
petitive service can be made only for just cause and for 
reasons stated in writing, with an opportunity to the em¬ 
ployee to be heard. “Just cause” is defined as being any 
cause not merely political or religious, which will promote 
the efficiency of the service. 

The Effect of the competitive system has been to give 
the public service the character of permanency and. in¬ 
creased efficiency. The administration may change at 
Washington, but the 200,000 or more officials under the 
civil service rules are not affected thereby. There is no 
longer a clean sweep ” at the beginning of every adminis¬ 
tration, no longer the demoralization that once characterized 
the government service when a new party came into power. 
Thus the whole tone of the public service has been im¬ 
proved, and the President and heads of the departments 
have been partly relieved from the burden of listening to the 
appeals of the army of office seekers who used to de- 

1 By a law of 1907, employees in the classified service are forbidden 
to take active part in political campaigns, and this prohibition has 
been construed to forbid service on political committees, service as 
delegates to party conventions, publication of newspaper articles 
of a political nature, membership in political clubs, circulation of 
petitions of a political character, etc. 


310 ’ THE PRESIDENCY: POWERS AND DUTIES 

scene! upon Washington at the beginning of every new ad¬ 
ministration. 

Management of Foreign Affairs. —The United States as 
a leading member of the family of nations has an extensive 
• intercourse with other countries. There is no nation with 
which it has not entered into relations of some kind or 
another. With every civilized country and some that are 
not civilized, we have one or more treaties regulating cer¬ 
tain of our relations with them. 

How Treaties are Negotiated .—The President, by and 
with the advice and consent of the senate, two thirds of 
the members concurring, is charged with the negotiation of 
all treaties. The share of the senate in the negotiation 
of all treaties has already been discussed in chapter x and 
need not be repeated here. 

The President does not conduct the negotiations himself, 
but acts through the secretary of state, who is a sort of 
minister of foreign affairs. The secretary is subject to 
his directions, however, and while conducting negotiations 
keeps the President fully informed of their progress, and 
secures his approval of all points which in his judgment 
should be submitted to him for an opinion. Foreign 
ministers at Washington who wish to discuss questions of 
foreign policy with the President are referred to the secre¬ 
tary, who is his responsible minister in such matters. Am¬ 
bassadors, ministers, and consuls of the United States are 
appointed by the President, though the approval of the 
senate is essential to the validity of the appointment. 
Diplomatic representatives sent abroad bear letters of 
credence signed by the President, and from time to time 
they are given instructions as to the demands they shall 
make upon foreign governments, the proposals they shall 
make, or the propositions they shall accept. These in- 


MANAGEMENT OF FOREIGN AFFAIRS 


311 

structions are prepared by the secretary of state, though 
in important cases he consults the President and ascertains 
his wishes in the matter. The President may transfer a 
minister from one post to another, may recall him, or dis¬ 
miss him whenever he likes. 

Power to “Receive’’ Foreign Ministers .—The President is 
also the authority designated by the Constitution for re¬ 
ceiving ambassadors and ministers accredited by foreign 
governments to the government of the United States. To 
receive a foreign minister is to recognize him as the official 
representative to the United States of the government 
which has appointed him. When a new minister arrives 
at Washington, he is escorted to the White House by the 
secretary of state on a day agreed upon, and is received 
by the President. The new minister presents his credentials 
and delivers a short ceremonial address, to which the Presi¬ 
dent responds. He is then recognized as the official organ 
of communication between the United States government 
and the government which he represents. The President, 
however, may refuse to recognize a minister from a country 
whose independence is in doubt, or one who is personally 
objectionable to the United States government. He may 
also request a foreign government to recall a minister ac¬ 
credited to the United States, or may dismiss one for con¬ 
duct highly offensive to the government. 

The Military Powers of the President.—The Constitu¬ 
tion declares that the President shall be commander in 
chief of the army and navy and also of the militia of the 
several states whenever it is called into the service of the 
United States. The power to declare war, however, be¬ 
longs to Congress, though the President may through his 
management of the foreign affairs of the country bring 
about a situation which may make a declaration of war 


312 THE PRESIDENCY: POWERS AND DUTIES 

a virtual necessity. Congress also determines the size of 
the army, the method of raising the forces, their terms of 
service, pay, subsistence, organization, equipment, loca¬ 
tion of forts, and indeed everything relating to its make-up. 

Extent of the President’s Power .—The President, as com¬ 
mander in chief, decides where the troops are to be lo¬ 
cated, and where the ships are to be stationed. It is upon 
his orders that the troops are mobilized, the fleets assembled, 
and the militia of the states called out. He directs the 
campaigns and might, if he wished, take personal command 
of the army, the navy, or the militia, though in practice 
he never does, the army, in fact, being commanded by a 
military officer and the navy by the admiral. He may do 
whatever, in his judgment, may conduce to the destruction 
of the power or the weakening of the strength of the enemy, 
so long as he acts within the accepted rules of international 
law. His power is limited only by the requirements of 
military necessity. Thus he may declare that any prop¬ 
erty used by the enemy for warlike purposes or which may 
in other respects be a source of strength to the enemy shall 
be subject to confiscation. It was in pursuance of this 
power that President Lincoln issued the emancipation 
proclamation freeing the slaves in certain of the Southern 
states during the Civil War. 

Power to Govern Occupied Territory .—When an enemy’s 
territory has once been occupied by the army, the Presi¬ 
dent, as commander in chief, may assume control and gov¬ 
ern it through such agencies and in such manner as he may 
see fit. He may displace the existing authorities or make 
use of them as he wishes. He may appoint military gov¬ 
ernors and set up tribunals in the place of the existing 
courts. He may suspend the writ of habeas corpus, in¬ 
stitute martial law, and deprive the inhabitants of other 


THE MILITARY POWERS OF THE PRESIDENT 


313 

safeguards established by the Constitution for their pro¬ 
tection against the arbitrary encroachments of the gov¬ 
ernment. By virtue of this authority President Lincoln 
governed those parts of the South which came under the 
jurisdiction of the military forces of the United States 
during the Civil War. In the same way President Mc¬ 
Kinley governed Porto Rico and the Philippines for months 
during and after the war with Spain. 

Conclusions .—From this summary it will readily be seen 
that the powers of the President as commander in chief 
during war are very great, in fact almost unlimited. He 
may become, as President Lincoln did, practically a dic¬ 
tator, and if he should choose to abuse his powers he might 
deprive the people of a large portion of their liberties. 

In time of peace, the military powers of the President 
are far less than during war, though they are still consid¬ 
erable. His duty to protect the states against invasion 
and his power to order out the troops to suppress domestic 
violence upon the application of the state executive or 
legislature are discussed in chapter iii. Whenever the 
movement of interstate commerce or the instrumentalities 
of the national government are interfered with by rioters 
it is his right and duty to employ the army or the navy if 
necessary to suppress the disturbances.^ By an act of 
Congress passed in 1795 and still in force, the President is 
authorized to call out the militia whenever the laws of the 
United States are opposed or their execution obstructed 
by combinations too powerful, in his judgment, to be sup¬ 
pressed by the ordinary course of judicial proceedings, or 
by the federal marshals. And the President is the sole 
judge of the existence of the state of facts thus described, 
and no court in the land can review his decision in regard 
1 See further on this point, pp. 6o-62'. 


314 


THE PRESIDENCY: POWERS AND DUTIES 


thereto. It was in pursuance of this act that President 
Lincoln issued his first call for the militia in i86i. 

The President’s Share in Legislation.—While the chief 
duty of the President is to execute the laws, he is at the 
same time given a share in their making. This share is 
both positive and negative in character. 

Presidential Messages.—The Constitution makes it his 
duty to give Congress from time to time information of 
the state of the Union and to recommend for its consid¬ 
eration such measures as he may judge, necessary and 
proper. This requirement rests upon the obvious fact that 
he possesses more extensive sources of knowledge in regard 
to the state of public affairs than any one else, and is also 
familiar with the workings of the laws, and hence is in a 
position to recommend legislation for their improvement. 

The information required to be furnished Congress is 
contained in an annual message communicated at the be¬ 
ginning of each session, and in special messages communi¬ 
cated from time to time during the session. 

Early Practice .—It was the custom at the beginning of 
our national history for the President to deliver an address 
at the opening of Congress, in the presence of both houses 
assembled in the senate chamber, and for each house there¬ 
after to draw up a suitable reply, in accordance with the 
English custom. This plan was followed by both Wash¬ 
ington and Adams, but Jefferson inaugurated the practice 
of communicating what he had to say in the form of a 
written message, and this custom has been followed ever 
since. Jefferson thought the course thus adopted would be 
more convenient and would relieve the houses from “the 
embarrassment of immediate answers on subjects not yet 
fully before them.” 

Character of the Annual Messages .—The annual message 


PRESIDENTIAL MESSAGES 


315 

contains a review of the operations of the government dur¬ 
ing the preceding year, together with such recommenda¬ 
tions for additional legislation as the President thinks the 
interests of the country require. It also contains a sum¬ 
mary of the reports of the several heads of departments, and 
is accompanied by the full reports of the departments. 
Sometimes one or the other of the houses adopts resolutions 
calling on the President for information on particular sub¬ 
jects, and if in his judgment the communication of the in¬ 
formation is not incompatible with the public interests, the 
information is furnished. 

The message is printed in full in nearly all the daily news¬ 
papers of the country on the day on which it is communi¬ 
cated to Congress, and it is widely read by the people and 
commented on by editors. It is read in each house of 
Congress by a clerk, is then ordered to be printed, and the 
various recommendations which it contains are distributed 
among the appropriate committees. The consideration 
which the recommendations receive at the hands of Con¬ 
gress depends upon the influence which the President 
wields with the two houses. If he belongs to a different 
political party from that which is in control of Congress, 
or if for other reasons Congress is out of sympathy with his 
policies, his recommendations count for little. 

Power to Call Extraordinary Sessions.—The President 
has power to call extraordinary sessions of Congress for 
the consideration of special matters of an urgent character. 
Of course the President cannot compel Congress to adopt 
his recommendations at a special session any more than 
at a regular session, but he can sometimes hasten action 
and if he is backed by a strong public opinion he may be 
able to accomplish even more. The authority to call ex¬ 
traordinary sessions has been exercised by Presidents 


THE PRESIDENCY: POWERS AND DUTIES 


316 

Adams, Jefferson, Madison, Van Buren, Harrison, Pierce, 
Lincoln, Hayes, Cleveland, McKinley, Roosevelt, and Taft. 
In all of these instances Congress was called together to 
deal with extraordinary situations such as foreign diffi¬ 
culties, financial panics, rebellion, the enactment of ap¬ 
propriation bills which had failed at the regular session, 
the enactment of tariff bills for which there was an urgent 
demand, the approval of reciprocity treaties, and the like. 
The senate has often been convened in extraordinary ses¬ 
sion at the beginning of a new administration for the pur¬ 
pose of approving the nominations of the President, but 
the house of representatives has never been called alone. 

Power to Adjourn Congress.—The President is also au¬ 
thorized to adjourn the two houses in case of disagreement 
between them as to the time for adjourning the session. 
Only one such case of disagreement has ever occurred, 
namely, in the special session of November, 1903, when the 
senate proposed to end the session and the house of repre¬ 
sentatives refused. President Roosevelt did not exercise 
his power in this case, so the special session continued about 
two weeks longer, until it was ended by the beginning of 
the regular session. 

Power to Issue Ordinances.—Under the legislative func¬ 
tions of the President may also be included what is known 
as the ordinance power, that is, the power to issue certain 
orders and regulations having the force of law. Such are the 
regulations issued for the regulation of the army and navy, 
the postal service, patents, pensions, public lands, Indian 
affairs, the customs service, internal revenue service, ma¬ 
rine hospital service, the consular service, the civil service, 
and many other branches of administration. Some of 
these regulations are issued by the President in pursuance 
of express authority conferred upon him by acts of Con- 


POWER TO ISSUE ORDINANCES 


317 


gress; others are issued as a result of the necessity of pre¬ 
scribing means for carrying into effect the laws of Congress 
and sometimes of interpreting them; ^ while still others are 
issued in pursuance of the constitutional powers of the 
President. Such are the regulations issued for the govern¬ 
ment of the army and navy, in pursuance of the authority 
of the President as commander in chief. 

The Veto Power.—Finally, the President is given an 
important share in legislation through the constitutional 
requirement which requires that all bills and resolutions 
passed by Congress shall be submitted for his approval.^ 
The power to withhold his approval of the acts passed by 

^ Such are the regulations governing the revenue cutter service. 
A recent example is found in the regulations issued by President 
Taft for putting into effect the new law levying a tax on corporations. 
The meaning of the law in various particulars had to be interpreted, 
and the method and means of assessing and collecting the tax had to 
be prescribed. 

2 Ex-President Benjamin Harrison, in his book “ This Country of 
Ours,” p. 138, thus describes the course which a bill takes after it has 
passed both houses: “When a bill has passed both houses of Congress 
and has been signed by the president of the senate and the speaker 
of the house, it is taken, by the clerk of the committee on enrolled 
bills, to the Executive Mansion, where the date of its delivery is 
stamped upon it. The practice is then to send the bill to the head of 
the department to which its subject matter belongs—to the war 
department, if to army matters; to the interior, if to pensions, or pub¬ 
lic lands, or Indian affairs, etc.—for the examination of the secretary, 
and for a report from him as to any objections that may occur to him. 
As to the frame of the bill, and as to any constitutional questions in¬ 
volved, the attorney-general is often consulted, though the bill does 
not relate to his department. The President then takes up the bill, 
with the report from the department, and examines it, and if he ap¬ 
proves writes thereon “Approved,” giving the date, and signs his 
name. The bill, now become a law, is then sent to the state depart¬ 
ment to be filed and published in the statutes at large.” 


3i8 the PRESIDENCY: POWERS AND DUTIES 

Congress is popularly known as the veto power. It was 
called by the framers of the Constitution the President’s 
“ quahfied negative.” This prerogative constitutes an ex¬ 
ception to the principle of the separation of governmental 
powers, and was conferred upon the executive as a means 
of enabling him to defend his constitutional powers and 
privileges against the encroachments of the legislative 
department, as well as to provide a check upon hasty and 
careless legislation by Congress. The conditions under 
which the right of veto may be exercised, the forms which 
it may take, and the procedure by which it may be over¬ 
ridden by Congress are discussed in chapter xi. The 
President may veto a bill because he believes it to be un¬ 
constitutional, or because he believes it is unwise or in¬ 
expedient, though in both cases a wise executive will be 
slow to set his judgment against the combined judgment of 
the members of Congress. 

No Power to Veto Items in Appropriation Bills .—Unlike 
the governors of many of the states, he cannot veto par¬ 
ticular items in appropriation bills, as a result of which he is 
sometimes confronted with the embarrassing duty of sign¬ 
ing a bill carrying certain appropriations to which he ob¬ 
jects, or of vetoing the entire bill. President Cleveland on 
one occasion vetoed the rivers and harbors bill carrying an 
appropriation of many millions of dollars rather than ap¬ 
prove certain items in it which he considered wasteful and 
extravagant. If the President had the power to veto par¬ 
ticular items in appropriation bills he could prevent useless 
and extravagant appropriations in many cases without be¬ 
ing under the necessity of defeating at the same time those 
which are desirable and necessary. 

Use of the Veto Power .—The early Presidents either did 
not make use of the veto power at all, or employed it spar- 


THE VETO POWER 


,319 

ingly. Neither John Adams, nor Thomas Jefferson, nor 
John Quincy Adams, during the sixteen years in which they 
occupied the presidential chair, vetoed any bills, while 
Washington, Madison, and Monroe together vetoed only 
eight. Many of the later Presidents used the veto power 
more freely. 

No bill was passed over the veto of a President until the 
administration of Tyler, when one was so passed. Four 
were passed over the vetoes of Pierce, fourteen over those 
of Johnson, three over those of Grant, one over a veto of 
Hayes, one over a veto of Arthur, two over vetoes of Cleve¬ 
land, and one over a veto of Harrison. 

Joint Resolutions as well as bills are usually presented to 
the President for his signature, and must be approved be¬ 
fore they have any validity, though it has not been the 
practice to submit to the President, for his approval, joint 
resolutions proposing amendments to the Constitution. 
Concurrent resolutions not having the force of law, but 
being merely expressions of the sense of the legislative de¬ 
partment on some question of interest to it alone, do not 
require the approval of the President.^ 

Importance of the Veto .—The threat of the President to 
employ the veto may be used to great effect. A strong 
President who has positive ideas in regard to the kind of 
legislation which the country needs and which public 
opinion demands, may compel the adoption in whole or in 
part of those ideas by the threatened use of the veto. The 
necessity of obtaining the approval of the President really 
gives him a powerful share in legislation. Roosevelt, for 
example, on a number of occasions threatened to veto 
bills about to be passed by Congress unless they were 

1 The distinction between bills, joint resolutions, and concurrent 
resolutions is discussed on pp. 204-205. 


320, 


THE PRESIDENCY: POWERS AND DUTIES 


changed so as to embody the ideas which he advocated, 
and the threats were not without effect. 

The Pardoning Power of the President.—The Consti¬ 
tution authorizes the President 'To grant reprieves and 
pardons for offenses against the United States except in 
cases of impeachment.” ^ The President cannot, of course, 
pardon offenses against state law. Offenses against the 
postal laws, the revenue laws, the laws against counterfeit¬ 
ing, and the national banking laws are those for which par¬ 
dons are most frequently sought. Crimes committed in the 
territories are, however, offenses against the laws of the 
United States, and are frequently the object of applica¬ 
tions for pardon. 

With the exception of the limitation in regard to im¬ 
peachment offenses,* the President’s power of pardon is ab¬ 
solute. His power is not restricted by a board of pardons 
as is that of the governors of some of the states, nor can 
Congress in any way abridge his power or restrict the effect 
of a pardon granted by him. Moreover,' he may grant a 
pardon before as well as after conviction, though this is 
rarely done in the case of individual offenses. It is some¬ 
times done, however, where large numbers of persons have 
become liable to criminal prosecution for participation in 
rebellion, resistance to the laws, and similar acts. 

Amnesty .—In such cases the pardon is known as an 
“amnesty,” and is granted by proclamation. Thus in De¬ 
cember, 1863, President Lincoln issued an amnesty procla¬ 
mation offering a full pardon to all persons in arms against 

^ Impeachment offenses were excepted for the purpose of prevent¬ 
ing the President from granting pardons to his own appointees and 
thereby shielding them from the consequences of their acts. 

For definition of pardon and reprieve, and further discussion of 
the nature and purpose of the pardoning power, see p. 102-103. 


THE PARDONING POWER OF THE PRESIDENT 321 

the United States provided they would lay down their arms 
and return to their allegiance. In April, 1865, President 
Johnson issued a proclamation offering amnesty to all 
those who had borne arms against the United States, with 
certain exceptions and subject to certain conditions. The 
last instance of the kind was the proclamation issued by 
President Harrison, in 1899, granting amnesty to the Mor¬ 
mons who had violated the anti-polygamy laws of the 
United States. 

Commutation .—The power to pardon is held also to in¬ 
clude the power to commute a sentence from a heavier to a 
lighter penalty, and also to reduce a fine or remit it 
entirely. 

Parole .—In 1910, Congress passed a law providing for 
the release on parole of federal prisoners sentenced to a 
term of more than one year provided their conduct has 
been satisfactory. At each of the three federal prisons 
there is a board of parole charged with hearing applications 
for release. 

Immunity of the President from Judicial Control.—Being at 
the head of a coordinate department of the government, the 
President, unlike other public officers, is not subject to the 
control of the courts. They cannot issue processes against 
him, or restrain him or compel him to perform any act. 
During the trial of Aaron Burr for treason. Chief Justice 
Marshall issued a subpoena directed to President Jefferson 
requiring him to produce a certain paper relating to Burr’s 
acts, but the President refused to obey the writ, declaring 
that if the chief executive could be compelled to obey the 
process of the courts he might be prevented from the dis¬ 
charge of his duties. Even if the President were to commit 
an act of violence, he could not be arrested or in any way 
restrained of his liberty. The only remedy against acts of 
Govt. U. S.—21 


32 2 THE PRESIDENCY: POWERS AND DUTIES 

violence committed by him is impeachment by the house 
of representatives and-trial by the Senate. If convicted, 
he must be deprived of his office, after which his immunity 
ends and he is liable to prosecution and trial in the ordinary 
courts as any other offender. The principle upon which the 
President is exempt from the control of the courts is not 
that he can do no wrong, but that if he were subject to judi¬ 
cial restraint and compelled to obey the processes of the 
courts, the administration of the duties of his high office 
might be interfered with. 

Nevertheless, the Supreme Court does not hesitate to ex¬ 
ercise control over the subordinates through whom the 
President acts in most cases, and it will refuse to sanction 
orders or regulations promulgated by him if they are un¬ 
constitutional, To this extent, his acts are subject to judi¬ 
cial control. 

References.— Andrews, Manual of the Constitution, pp. 180-201. 
Beard, American Government and Politics, ch. x. Bryce, The 
American Commonwealth (abridged edition), ch. v. Fairlie, Na¬ 
tional Administration, chs. i-ii. Harrison, This Country of Ours, 
ch. vi. Hinsdale, American Government, ch. xxxii. 

Documentary and Illustrative Material.—i. Copy of an inaugural 
address of the President. 2. Copy of an annual message of 
the President. 3. Copies of executive orders and proclamations. 
4. Copies of veto messages. 

Research Questions 

1. What is your opinion of Sir Henry Maine’s saying that the 
President of the United States is but a revised edition of the English 
King? 

2. How do the powers of the President compare in importance and 
scope with those of the King of England? 

3. Have the President’s powers increased or decreased since 1789? 
Give your reasons. 


RESEARCH QUESTIONS 


323 

4. Name some of the Presidents who were notable for the vigorous 
exercise of executive power. 

5. What is your opinion of the position taken by President Roose¬ 
velt that the power of the President should be increased by executive 
interpretation and judicial construction? 

6. Is the President the judge of the extent and limits of his own 
powers? If not, what authority is? 

7. Do you think the President ought to be prohibited from removing 
officers except for good cause? Ought the consent of the senate to 
be required in all cases of removal? 

8. What is your opinion of the proposition that the members of 
the cabinet should be elected by the people? 

9. Why are the powers of the President so much more extensive 
in time of war than in time of peace? 

10. What were the principal recommendations made by the Presi¬ 
dent in his last annual message? 

11. Do you think he should be allowed to grant pardons before 
conviction? Would it not be well to have a federal board of pardons 
whose approval should be necessary to the validity of all pardons 
issued by the President? 

12. In the exercise of his duty to enforce the laws, may the Presi¬ 
dent interpret their meaning in case of doubt? 

13. To what extent ought the President in makirig appointments 
to take into consideration the politics of the appointee? To what ex¬ 
tent should he be governed by the recommendations of members of 
Congress? 

14. Why should the executive power be vested in the hands of a 
single person while the judicial and legislative powers are vested in 
bodies or assemblies? 

15. Do you think the present salary allowed the President ade¬ 
quate? How does it compare with the allowance made to the King 
of England? the German Emperor? the President of France? 


CHAPTER XVII 


THE CABINET AND THE EXECUTIVE DEPARTMENTS 

The Cabinet.—The heads of the-nine executive depart¬ 
ments collectively constitute the President’s cabinet. They 
are, in the order of rank, the secretary of state (first 
styled the secretary of foreign affairs), the secretary of the 
treasury, the secretary of war, the attorney-general, the 
postmaster-general, the secretary of the navy, the secre¬ 
tary of the interior, the secretary of agriculture, and the 
secretary of commerce and labor. Each department is 
divided into a number of bureaus, and the bureaus are in 
turn generally subdivided into divisions. At the head of 
each bureau is a chief of bureau, and at the head of each 
division is a chief of division. Each head of a depart¬ 
ment has one or more assistants. Thus there are four assist¬ 
ant postmasters-general, three assistant secretaries of the 
treasury, and so on. Each department and bureau also has 
a chief clerk, who has general charge of the clerical staff. 

Origin and Nature of the Cabinet.—There was no 
thought in the beginning that the heads of departments 
should constitute a cabinet or advisory council to the Pres¬ 
ident, and during the first administration they were never, 
as a matter of fact, convened by him for collective consulta¬ 
tion. When their opinions or advice were desired they were 
requested by written communication. During his second 
term, however. President Washington adopted the practice 

324 


ORIGIN AND NATURE OF THE CABINET 


325 

of assembling the heads of departments occasionally for 
consultation not only on matters pertaining to their par¬ 
ticular departments but in regard to questions of general 
executive policy. Thus the cabinet meeting became a regu¬ 
lar feature of executive procedure, and the cabinet a per¬ 
manent institution. It is well to remember, however, that 
the cabinet as such is an entirely extra-legal institution, 
that is, it is recognized neither by the Constitution nor by 
the laws, and no record is kept of its proceedings. 

Cabinet Responsibility .—Unlike a European cabinet, the 
members of the President’s cabinet are not responsible to 
either house of Congress for their policies, and of course 
they never think of resigning when Congress refuses to carry 
out their recommendations or to approve their official acts. 
They are responsible solely to the President for their official 
conduct, and are subject to his direction, except in so far as 
their duties are prescribed by law, and they may be dis¬ 
missed by him at will. They are, in short, the ministers of 
the President, not of Congress; administrative chiefs, not 
parliamentary leaders. There is little resemblance, there¬ 
fore, between the American cabinet and a European min¬ 
istry. 

Cabinet Appointments .—The heads of the departments 
are appointed by the President, and in view of the intimate 
relation which they bear to him, his selections are usually 
confirmed by the senate without question. Generally, only 
members of the particular party to which the President be¬ 
longs are appointed, though occasionally there are excep¬ 
tions. The salary of the cabinet members is now $12,000 a 
year. 

The Department of State.—At the head of the depart¬ 
ment of state is the secretary of state, who is the ranking 
member of the cabinet and the first in line for the presi- 


326 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

dency in case of the death or removal of both President 
and Vice President. He sits at the right hand of the Presi¬ 
dent at cabinet meetings and is given precedence over his 
colleagues on occasions of ceremony. There are also three 
assistant secretaries in the department, at least one of 
whom is considered a permanent officer and does not change 
with the administration. 

The duties of the secretary of state fall into three groups: 
first, he is the custodian of the great seal and of the archives 
of the United States. In this capacity he receives the acts 
and resolutions of Congress, publishes them in certain 
'tapers, and preserves the originals. Under this head also 
fall the duties of countersigning proclamations and impor¬ 
tant commissions of the President and of attaching thereto 
the great seal. In the second place, the secretary of state 
is the organ of communication between the national govern¬ 
ment and the state governments. Thus an application from 
the governor of a state for troops to suppress domestic vio¬ 
lence, or a request for the extradition of a criminal who has 
taken refuge in a foreign country, is made through the secre¬ 
tary of state. In the third place, the secretary of state is 
the organ of communication between the United States and 
foreign powers, that is, he is the minister of foreign affairs. 
He carries on all correspondence with foreign governments, 
negotiates treaties, countersigns warrants for the extradi¬ 
tion of fugitives from the justice of foreign countries, issues 
passports to American citizens wishing to travel abroad, 
and grants exequaturs to foreign consuls in the United 
States. 

The Diplomatic Service.—For purposes of administra¬ 
tion the department of state is organized into eight bureaus. 
The Diplomatic Bureau is charged with the preparation of 
diplomatic correspondence with foreign governments, has 


THE DEPARTMENT OF STATE 


327 


charge of the engrossing of treaties and other formal papers, 
the preparation of the credentials of diplomatic represent¬ 
atives, and of ceremonious letters. The United States gov¬ 
ernment is now represented at the governments of some 
fifty-five different foreign countries by diplomatic repre¬ 
sentatives, and most of these governments maintain diplo¬ 
matic representatives at Washington. Our representatives 
to Great Britain, France, Germany, Russia, Austria, Italy, 
Japan, Mexico, Brazil, and Turkey bear the rank of am¬ 
bassador. The government is represented at most of the 
other countries by envoys extraordinary and ministers 
plenipotentiary; but to two it sends ministers resident. The 
principal difference between the different classes of minis¬ 
ters is one of rank and precedence. At the more impor¬ 
tant foreign posts the ambassador or minister is pro¬ 
vided with from one to three secretaries. There are also 
interpreters at the legations in Oriental countries, and at all 
the important foreign capitals military and naval attaches 
are attached to the legation. 

Elimination of the Spoils System .—Formerly the effi¬ 
ciency of the diplomatic service was impaired by the ex¬ 
istence of the spoils system, as a result of which diplomatic 
appointments were determined largely by political consid¬ 
erations. Changes were made at the beginning of each new 
administration, and are to a large extent now. In recent 
years, however, there has been a disposition to introduce 
the merit system into the diplomatic service and to make 
fewer changes for political reasons. 

Duties of Diplomatic Representatives .—The principal du¬ 
ties of diplomatic representatives are to watch over the in¬ 
terests of their country and its citizens in the country to 
which they are accredited and to see that they receive proper 
protection, to present and cause to be settled all claims 


328 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

against the foreign country in which they reside, to ne¬ 
gotiate treaties, to settle disputes and adjust difficulties, 
to promote friendly relations, and, in general, to represent 
their government in its relations with the government to 
which they are accredited. It is also the duty of a diplo¬ 
matic representative to keep his government fully informed 
on all matters in which it is likely to be interested. He is 
expected to transmit reports relating to political conditions, 
finance, commerce, agriculture, arts and science, systems of 
taxation, population, judicial statistics, new inventions, and 
other matters of possible interest to his government. 

The procedure by which treaties are negotiated may take 
either of two courses: the secretary of state may conduct the 
negotiations with a foreign minister at Washington, or he 
may direct the American minister in the foreign country 
with which it is desired to treat to negotiate with the min¬ 
ister of foreign affairs of that government.^ 

^ The following description of the procedure observed in drawing up, 
signing, and ratifying treaties is given by Mr. Van Dyne in his book 
entitled “Our Foreign Service,” pp. 9-10: 

“When the terms of a treaty are agreed upon, two exact copies are 
engrossed at the Department of State, and signed by the Secretary 
and the foreign minister. Where the two countries have not a com¬ 
mon language the texts in the two languages are engrossed in parallel 
columns. In drawing up treaties this government adheres to the 
‘alternat,’ by which in the copy of the treaty to be retained by this 
government, the United States is named first, and our plenipotentiary 
signs first. In the copy to be retained by the foreign government that 
government is named first and its plenipotentiary signs first. The 
seal of each plenipotentiary is placed after his signature. Two nar¬ 
row pieces of red, white and blue striped silk ribbon are laid across 
the page, some hot wax is dropped on the document at the place where 
the impression of the seal is to be made, and the seals are placed on 
this, the ribbon thus fastened to the seals being used to bind the pages 
of the instrument. When the treaty is ratified, a day is fixed and the 


THE DEPARTMENT OF STATE 


329 

The Consular Service. —The Consular Bureau in the de¬ 
partment of state has charge of the correspondence with our 
consular officers in foreign countries. A consul differs from 
a diplomatic representative in being a commercial rather 
than a political representative. Consuls are stationed at all 
important commercial centers in foreign countries, to look 
after the commercial interests of their country, promote 
foreign trade, watch over shipping and navigation, admin¬ 
ister the estates of American citizens dying abroad, assist 
in the administration of our customs, health, navigation, 
immigration, and naturalization laws, and to collect such 
information concerning the trade, industries, and markets 
of foreign countries as may be of value to the commercial 
interests of the United States.^ 

Recent Reforms .—In obedience to the widespread de¬ 
mands of the commercial interests of the country, notable 
improvements have recently been made in our consular serv¬ 
ice. Formerly political considerations largely determined 

plenipotentiaries meet and exchange ratifications. The ratification- 
is attached to the instrument. When the ratification is completed, 
proclamation of the fact and publication of the text are made simul¬ 
taneously at the capitals of each nation, upon a day agreed upon.” 

1 In certain Oriental countries, notably Borneo, China, Morocco, 
Persia, Siam, Tripoli, and Turkey, the United States consuls, by 
virtue of treaty arrangements, exercise jurisdiction over American 
citizens in both civil and criminal cases. They are empowered to 
try Americans for offenses committed within their districts and to 
determine all civil controversies between citizens of the United States 
residing therein. In more serious criminal cases and in civil cases 
involving large amounts, appeals may be taken to the American 
minister. The reason why civilized states refuse to permit their 
citizens to be tried by the courts of these countries is that their 
standards of law and procedure are repugnant to those of Western 
countries. Formerly consular jurisdiction existed in Japan also, but 
it was abolished by treaty in 1899. 


330 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

appointments to the service, and at the beginning of each 
new administration a wholesale removal was made in order 
to find places for party workers. By acts of Congress passed 
in 1906 and 1909, however, the service was reorganized and 
attempts made to place it on a merit basis. The fee system 
was abolished, consuls were prohibited from practicing law 
or engaging in other businesses, provision was made for 
periodic inspection of consulates, and a system of examina¬ 
tions was inaugurated for determining the qualifications of 
appointees to the service. The adoption of these reforms 
has brought about a marked increase in the efficiency of the 
service and has tended to give to it the character of a per¬ 
manent professional career such as it enjoys in Europe. 

Other Bureaus of the State Department.— The Bureau 
of Indexes and Archives is charged with keeping the records 
and indexing the correspondence of the department of state. 
It also prepares the annual volumes of the foreign relations 
which contain such portions of the diplomatic correspond¬ 
ence it is considered desirable to publish. 

The Bureau of Citizenship is charged with the issue of 
passports to persons who desire to travel abroad. A 
passport is a paper signed by the secretary of state certi¬ 
fying that the bearer is a citizen of the United States or 
has declared intention of becoming a citizen, and is entitled 
to the protection of the government when traveling abroad. 
They are granted not only to citizens but, by a recent law, 
to loyal residents of the insular possessions and to aliens 
who have declared their intention of becoming citizens and 
have resided in the United States for three years. A fee of 
one dollar is charged for each passpqrt issued. 

The other bureaus in the department of state are: ac¬ 
counts, indexes and archives, rolls and library, appoint¬ 
ments, and trade relations. 


THE DEPARTMENT OF THE TREASURY 


331 


The Department of the Treasury.—For the most part 
the department of the treasury is concerned with the man¬ 
agement of the national finances, including (i) the admin¬ 
istration of the revenue laws, (2) the custody of the national 
funds, (3) the auditing and accounting service, (4) the ad¬ 
ministration of the currency and national banking laws, 
(5) miscellaneous functions such as those relating to the 
life-saving service, the public health and marine hospital 
service, engraving and printing, construction of public 
buildings, etc. 

The custody of the government funds devolves upon the 
Treasurer, who is charged with receiving and disbursing 
upon proper warrant all public moneys that may be de¬ 
posited in the treasury at Washington or in the subtreas¬ 
uries at New York, Philadelphia, Baltimore, Cincinnati, 
Chicago, St. Louis, New Orleans, and San Francisco, and 
in such of the national banks as are designated as govern¬ 
ment-depositories. He is also the custodian of miscella¬ 
neous trust funds, is the agent of the government for paying 
interest on the public debt and for issuing and redeeming 
government paper currency and national bank notes, and 
is the custodian of the bonds deposited with the govern¬ 
ment to secure national bank circulation. 

The principal officers who have to do with the account¬ 
ing and auditing service are the register of the treasury, the 
comptroller of the treasury, and the six auditors. 

The Register of the Treasury issues and signs all bonds 
of the United States, registers bond transfers and redemp¬ 
tion of bonds, and signs transfers of public funds from the 
treasury to the sub treasuries or depositories. 

The Comptroller of the Treasury prescribes the forms of 
keeping accounts (except those relating to the postal serv¬ 
ice) and upon the request of a disbursing officer or the head 


332 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

of a department is required to render a decision upon the 
validity of a payment to be made, which decision is binding 
on the disbursing officer or the head of the department, 
unless the decision is reversed by the courts. 

The duties of the six Auditors are, in general, to examine 
and settle all claims for the varipus departments. Every 
public officer who pays out money must submit an account 
with proper vouchers, and he is not credited with the pay¬ 
ment of the same until his account has been audited and 
approved. 

The principal officers who have to do with currency ad¬ 
ministration are the director of the mint and the comp¬ 
troller of the currency. The Director of the Mint has gen¬ 
eral supervision of the administration of the coinage laws 
and the management of the coinage and assay offices.^ 
The Comptroller of the Currency exercises supervision over 
the national banks. It is his duty to see that national 
banks are properly organized, that the capital stock is 
fully subscribed and paid in, that the necessary amount of 
United States bonds have been duly deposited with the 
government to secure the circulation of their notes, that 
all banks are properly examined from time to time; and 
that the notes are redeemed and destroyed in accordance 
with the laws. 

Among the miscellaneous bureaus of the treasury de¬ 
partment which have no direct relation to the public 
finances the first in importance is the Public Health and 
Marine Hospital Service, which is under the direction of a 
supervising surgeon general who is charged with the super¬ 
vision of the national quarantine stations along the sea¬ 
board and the marine hospitals established for the relief of 
sick and disabled seamen. He is authorized to adopt regu- 
1 For a list of the mints and assay offices, see pp. 228-229. 


THE DEPARTMENT OF THE TREASURY 


333 

lations to prevent the introduction and spread of con¬ 
tagious diseases, and it is his duty to supervise the medical 
examination of immigrants seeking admission to the United 
States. 

The Life-Saving Service is charged with saving life and 
property along the coast line, and is under the supervision 
of a general superintendent. Scattered along the coast line 
from Maine to Alaska are some 300 stations, each manned 
by a keeper and a small number of surf men. 

The Supervising Architect is charged with the selection 
and purchase of sites for government buildings, such as 
federal courthouses, post-office buildings, customhouses, 
mints, etc.; with the preparation of plans and specifications 
for buildings; with the awarding of contracts for the erec¬ 
tion of the same; with keeping the public buildings in re¬ 
pair; and with leasing buildings needed for government 
purposes. 

The Bureau of Engraving and Printing is charged with 
the duty of engraving and printing all government se¬ 
curities, including United States notes, bonds, certificates, 
national bank notes, internal revenue, customs, and post¬ 
age stamps, treasury drafts and checks, licenses, commis¬ 
sions, patent and pension certificates, etc. 

The Revenue Cutter Service consists of a small fleet which 
patrols the coast line in order to prevent smuggling and 
other evasions of the customs laws. 

The Secret Service is a body of detective agents employed 
to detect frauds and crimes of various kinds against the 
government, such as counterfeiting the coin and public 
securities. Some of the force are also employed in guard¬ 
ing the President. 

The War Department.—The secretary of war has charge 
of all matters relating to national defense and seacoast 


334 the cabinet and the executive departments 

fortifications, river and harbor improvements, the preven¬ 
tion of obstructions to navigation, and the establishment of 
harbor lines; and all plans and locations, of bridges author¬ 
ized by Congress to be constructed over navigable rivers 
require his approval. 

The army is under the direction of the General Staff de¬ 
scribed on p. 263. Within the war department there are 
also a number of bureaus, each under the direction of an 
army officer. 

The Military Secretary has charge of the records and 
correspondence of the army and militia; of the recruiting 
service, including enlistments, appointments, promotions, 
resignations, etc. He communicates to subordinate officers 
the orders of the President and the secretary of war, and 
preserves reports of military movements and operations. 

The Inspector General, with his assistants, visits and in¬ 
spects military posts, depots, fortifications, armories and 
arsenals, and public works in charge of army officers, and 
makes reports on the conduct, efficiency, and discipline 
of officers and men, including their equipment, arms, and 
supplies. 

The Quartermaster General is charged with providing 
transportation for the army; also clothing, equipment, 
horses, mules, wagons, vessels, forage, and supplies gen¬ 
erally, other than food, arms, and ammunition. 

The Commissary General of Subsistence provides rations 
for the use of the army. Large storehouses are maintained 
in various cities, from which supplies are distributed to the 
military posts adjacent thereto. 

The Surgeon General has supervision over the medical 
service of the army; looks after the sick and wounded; pro¬ 
vides medical and hospital supplies, and inquires into the 
sanitary conditions of the army. In addition to field hospi- 


THE WAR DEPARTMENT 


335 

tals permanent depots and hospitals are maintained at 
various points. The duties of the service are performed by 
a large corps of physicians, nurses, and other employees. 

The Paymaster General is charged with the payment of 
the officers and enlisted men. 

The Judge-Advocate General is the chief law officer of the 
army; he reviews and keeps records of the proceedings of 
courts-martial, courts of inquiry, and military commissions, 
and acts as legal adviser to the war department. 

The Chief Signal Officer is charged with the supervision 
of all military signal duties, the construction, repair, and 
operation of military telegraph lines and cables, and per¬ 
forms other duties pertaining to military signaling. 

The Chief of Ordinance has general supervision of the 
purchase, manufacture, and distribution of artillery, small 
arms, and ammunition for the use of the army and the 
militia. For the manufacture of arms and ammunition 
there are eleven arsenals in different parts of the country, 
the principal ones being at Springfield, Massachusetts, 
Rock Island, Illinois, and Watervliet, New York. 

The Chief of Engineers is at the head of the engineering 
corps, a branch of the army which is charged with the con¬ 
struction of public works such as military roads, bridges, 
fortifications, river and harbor improvements, geographi¬ 
cal explorations, and surveys. The construction of the 
Panama Canal is the most notable of the recent undertak¬ 
ings of the war depaftment in this field. 

In addition to the purely military functions and con¬ 
struction of public works, the war department is concerned 
with the government of certain of the insular possessions. 
At the present time this duty is confined to the govern¬ 
ment of the Philippine Islands. For the conduct of this 
branch of the service, there is a Bureau of Insular Affairs^ 


336 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

at the head of which is an army officer with the title of 
chief of the bureau. This bureau also has charge of ap¬ 
pointments in the Philippine civil service, the transporta¬ 
tion of employees to the islands, and it gathers statistics 
of insular imports and exports. 

Finally, the war department has charge of the United 
States Military Academy at West Point, the various post¬ 
graduate schools of instruction for army officers located 
at different army posts, the national military parks at 
Chickamauga, Gettysburg, Shiloh, and Vicksburg, and the 
national cemeteries in various parts of the country. The 
military academy at West Point was founded in 1802, 
though it amounted to little until after the War of 1812. 
One cadet is appointed from each congressional district, 
usually upon the nomination of the representative in Con¬ 
gress from the district, two from each state at large, and 
thirty from the United States at large. All candidates are 
required to pass a physical and intellectual examination; 
the course of instruction lasts four years; and each cadet 
receives about $600 a year for his maintenance. Graduates 
receive appointments as second lieutenants in the army, 
those standing highest usually being appointed to the en¬ 
gineering corps if they prefer assignment to that branch of 
the service. The secretary of war exercises general super¬ 
vision over the academy, and it is inspected at regular in¬ 
tervals by a board of visitors of whom seven are appointed 
by the President, two by the Vice President, and three by 
the speaker of the house of representatives. The superin¬ 
tendent of the academy and the instructors are officers in 
the regular army. 

The Department of the Navy was created in 1798. 
At its head is a secretary, who, like the head of the war de¬ 
partment, is usually taken from civil life. Like the war de- 


THE DEPARTMENT OF THE NAVY 


337 


partment, the navy department is organized into a number 
of bureaus, though unlike those of the war department they 
are not under the direction of a general staff but are more 
or less independent of one another. 

The Bureau of Navigation has charge of the recruiting 
service, the training of officers and men, the naval academy; 
schools for the technical education of enlisted men, ap¬ 
prentice schools, the naval home at Philadelphia, transpor¬ 
tation of enlisted men, records of squadrons, ships, officers 
and men; the preparation of the naval register, preparation 
of drill regulations, signal codes, and cipher codes. 

The Bureau of Yards and Docks has general control of 
the navy yards and docks belonging to the government, in¬ 
cluding their construction and repair, and also of the con¬ 
struction of battleships whenever such construction is au¬ 
thorized by Congress. The navy yards are located at 
Washington, Brooklyn, Mare Island (California), Phila¬ 
delphia (League Island), Norfolk, Pensacola, Cavite (in the 
Philippines), and various other places. 

The Bureau of Equipment has charge of the furnishing of 
ships with rigging, sails, anchors, stores and supplies, elec¬ 
trical apparatus, lamps, charts, log books, fuel, navigation 
instruments, etc. Under this bureau falls the publication 
of the Nautical Almanac, charts and sailing directions, the 
naval observatory, and the hydrographic office. 

The Bureau of Ordnance has charge of the supply of arma¬ 
ment and ammunition for the ships. It supervises the man¬ 
ufacture of guns and torpedoes, installs armament on the 
vessels, and has charge of the naval proving ground and 
magazines, the naval gun factory, and the torpedo sta¬ 
tion. 

Other Bureaus, whose general duties are indicated by their 
titles, are: the bureau of construction and repair, the bureau 
Govt. U. S.—22 


338 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

of steam engineering, the bureau of medicine and surgery, 
and the bureau of supplies and accounts. 

The Judge-Advocate General is the law officer of the navy 
department and performs duties similar to those of the 
judge-advocate general of the war department. 

The department of the navy also has general charge of 
the United States Naval Academy at Annapolis. The acad¬ 
emy was founded in 1846, by George Bancroft, then sec¬ 
retary of the navy. One midshipman is allowed for each 
member of Congress and each territorial delegate, one for 
the District of Columbia, and ten from the United States 
at large.^ Appointments are made by the President after 
a physical and intellectual examination by a board, and an 
allowance is made for maintaining each midshipman while 
in residence at the academy. The course lasts four years 
and includes instruction in gunnery, naval construction, 
steam engineering, navigation, mathematics, international 
law, modern languages, etc. After the completion of the 
course, midshipmen spend two years at sea, after which they 
receive subordinate appointments in the navy or marine 
corps. 

The Department of Justice.—The office of attorney- 
general was created in 1789, and from the first the attorney- 
general was a member of the cabinet; but for a long time 
the duties of the office were not extensive, and it was not 
until 1870 that the office was made an executive depart¬ 
ment with its present title and organization. 

The Attorney-General is the chief law officer of the national 
government and is the legal adviser of the President and the 

1 In order to meet the increased demand for officers in the navy 
it was recently provided that until 1913 two midshipmen should be 
allowed for each member of Congress and delegate, and five from the 
United States at large each year. 


THE DEPARTMENT OF JUSTICE 


339 


heads of departments. He represents the United States be¬ 
fore the Supreme Court in cases in which it is a party, ex¬ 
ercises a sort of administrative supervision over the United 
States district attorneys and marshals and over the federal 
penal and reformatory institutions, examines applications 
for pardons, and advises the President in the exercise of his 
pardoning power. The opinions which he renders on con¬ 
stitutional and legal questions referred to him are pub¬ 
lished by the government in a series of volumes, and alto¬ 
gether they constitute an important body of constitutional 
and administrative law. Under the direction of the Presi¬ 
dent he institutes proceedings and prosecutes cases against 
corporations and persons for violations of the laws of the 
United States, or directs the district attorneys to do so. 

The Post Office Department.—At the head of the post 
office department is the postmaster-general. He establishes 
and discontinues post offices, appoints all postmasters 
whose compensation does not exceed $i,ooo a year, issues 
postal regulations, makes postal treaties with foreign gov¬ 
ernments, with the approval of the President, awards mail 
contracts, and has general supervision of the domestic and 
foreign postal service. There is an assistant attorney- 
general for the post office department, who advises the 
postmaster-general on questions of law, has charge of pros¬ 
ecutions arising under the postal laws, hears cases relating 
to the misuse of the mails, and drafts postal contracts. 
There are also four assistant postmasters-general, each of 
whom has supervision over a group of services within the 
department. The postal service has already been de¬ 
scribed in chapter xiv. 

The Department of the Interior.—The interior depart¬ 
ment, established in 1849, is one of the largest and most 
important of the nine executive departments. Next to the 


340 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

post office department, the services which it performs reach 
more people than those performed by any other depart¬ 
ment. Its staff of employees at Washington ranks second 
in numbers only to that of the treasury department. It has 
charge of the public lands, Indian affairs, pensions, patents, 
the geological survey, and, to some extent, the government 
of the territories. 

The Public Lands.—Perhaps the most important bureau 
in the interior department is the General Land Office, which 
has charge of the public lands, and the care and control of 
the forest reserves. Before the public lands are sold or 
otherwise disposed of they must be surveyed. For this 
purpose there are seventeen surveying districts, in each of 
which there is a surveyor general. 

Disposal of the Public Lands .—The public lands have 
been disposed of with a somewhat lavish hand. In the 
early days liberal grants were made to the soldiers of the 
Revolutionary War. Immense quantities have also been 
sold at low rates—much of it at $1.25 per acre—in order to 
encourage settlers to establish homes thereon. Consider¬ 
able quantities have also been granted to the states for 
educational purposes and the construction of internal im¬ 
provements. Beginning with Ohio in 1802, each new state 
admitted to the Union was given one section in each town¬ 
ship for the support of elementary schools, and those ad¬ 
mitted after 1850 were given two sections in each township. 
Under the Morrill act of 1862, 10,000,000 acres were given 
to the states for the establishment of colleges of agriculture 
and the mechanic arts. Some of the more recently admitted 
states were given from one to four townships each for the 
establishment of universities.^ 

1 The six states admitted between 1889 and 1890 were given 
23,000,000 acres. 


THE DEPARTMENT OF THE INTERIOR 


341 


Before the Civil War, large quantities were given to the 
states for the construction of canals and railroads. Large 
tracts of the public lands have also been granted to private 
corporations as subsidies for the building of transconti¬ 
nental railways. Finally, by an act of 1902, the proceeds 
from the sale of all public lands in seventeen Western states 
and territories are to be set aside for constructing irrigation 
projects in those states and territories. 

By the preemption act of 1841, it was provided that 160 
acres of land should be given to any family living thereon 
for a period of six months and paying $200 therefor. This 
act was repealed in 1891, but millions of acres were disposed 
of during the fifty years it was in force. 

By the homestead act of 1863, still in force, any head of a 
family may acquire 160 acres by living on it for five years 
and paying a small fee. 

The Public Lands now Remaining aggregate about 
700,000,000 acres, not including those in Alaska. Of these 
lands, a large part have been set aside for Indian reservations, 
national parks, military reservations, and forest reserves, 
and is therefore not open to purchase or entry under the 
homestead act. Arid lands are sold in tracts not exceeding 
640 acres at $1.25 per acre; mineral lands are sold at from 
$2.50 to $5 per acre; timber and stone lands at a minimum 
price of $2.50 per acre; town site lands at a minimum 
price of $10 per acre; and agricultural lands at $1.25 per 
acre. 

Land Offices are established in all the states where there 
is any considerable amount of public land left. At each 
office there is a register and a receiver who examines appli¬ 
cations for entries and issues certificates upon which patents 
or deeds are finally granted. 

Indian Affairs—Another important branch of the gov- 


342 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

eminent service falling within the department of the inte¬ 
rior is the management of Indian affairs. For a long time 
each tribe was treated to some extent as though it were an 
independent community, and was dealt with somewhat as 
foreign nations are dealt with. In 1871, however, it was 
enacted that henceforth no Indian tribe should be acknowl¬ 
edged or treated as an independent nation or power with 
which the United States may contract by treaty—an act 
which marks the beginning of the end of Indian tribal 
authority. 

The policy of extending the jurisdiction of the govern¬ 
ment over the Indians was begun by an act of 1885 which 
gave the United States courts jurisdiction over seven lead¬ 
ing crimes when committed by Indians on their reserva¬ 
tions. Previous to that time, crimes committed by Indians 
against Indians within a reservation were left to be dealt 
with by the tribal authorities themselves. 

The Allotment Act .—By the Dawes act of 1887 the new 
Indian policy begun in 1871 was still further extended. 
This act provided for the allotment of Indian lands to in¬ 
dividual members of the tribe, and declared that Indians 
who accepted such allotments or who should leave their 
tribe and adopt the habits of civilized life, should be con¬ 
sidered as citizens of the United States and entitled to all 
the rights and privileges of citizens. Previous to this time 
the lands occupied by the Indians were owned by the tribe 
as a whole and not by the individuals who occupied them. 
Under this act, allotments aggregating some 10,000,000 
acres have been made to individual Indians. The result of 
this pohcy will ultimately be to extinguish the Indian 
tribes and incorporate them into the American body politic. 

Indian Agents .—The control of the national government 
over the Indian reservations is exercised largely through In- 


THE DEPARTMENT OF THE INTERIOR 343 

dian agents appointed by the President. They are charged 
with the regulation of trade with the Indians, and have con¬ 
trol of the distribution of rations. At each agency one or 
more schools are maintained, and in addition to the reserva¬ 
tion schools there are schools for the higher education of In¬ 
dians in various parts of the country, the most important 
being at Lawrence, Kansas, and Carlisle, Pennsylvania. 
The burden of the Indian service has grown lighter with the 
passing years. The aggregate annual expenditures on ac¬ 
count of the service are now about $10,000,000, more than 
half of which consists of payments due the Indians under 
treaty stipulations or of interest on trust funds held by the 
government for them. 

The Pension Bureau has charge of the administration of 
the pension laws. The payments on account of pensions 
now constitute the largest item of expenditure by the na¬ 
tional government. Before the outbreak of the Civil War, 
pension expenditures rarely exceeded two million dollars 
a year, and the total outlay for this purpose during the en¬ 
tire period of our national history aggregated less than half 
the amount now appropriated for a single year. According 
to the report of the commissioner of pensions for 1910 there 
were 946,194 names on the pension rolls, and the amount 
appropriated for pensions was about $162,000,000. About 
$4,000,000,000 has been expended for pensions since the 
Civil War, a larger amount than the national debt incurred 
on account of the war itself. 

Administration of the Pension System .—At the head of 
the pension bureau is a commissioner of pensions, who su¬ 
pervises the examination and adjudication of claims for 
bounty lands and pensions. Throughout the country, there 
are local pensions agencies located m different cities from 
Augusta, Maine, to San Francisco, California. At each of 


344 the cabinet AND THE EXECUTIVE DEPARTMENTS 

these agencies there is a pension agent who prepares and 
mails quarterly vouchers to those who are entitled to pen¬ 
sions. 

The Patent Office includes a large number of officers, 
examiners, and employees, under the direction of the com¬ 
missioner of patents. Their work is described on p. 260. 

Minor Divisions of the Interior Department .—The Bu¬ 
reau of Education was established in 1867. At its head 
is a commissioner whose duty it is to collect and publish 
statistics and other information concerning the methods, 
conditions, and progress of education in the United States. 
Each year he publishes an elaborate report summarizing the 
educational progress of the country, together with mono¬ 
graphs by experts on special topics of educational interest. 
The commissioner is also charged with the administration of 
the funds appropriated for the support of the colleges of 
agriculture and mechanic arts and with the supervision of 
education in Alaska and the reindeer industry in that 
country. 

The Geological Survey was established as a bureau in the 
department of the interior in 1879. It is under the control 
of a director who is charged with the classification of the 
public lands and the examination of the geological structure, 
mineral resources, and mineral products of the public lands 
and the survey of the forest reserves. The bureau has un¬ 
dertaken the preparation of topographical and geological 
maps of the United States, a considerable portion of which 
has been completed, the collection of statistics of the min¬ 
eral products, the investigation of mine accidents, the 
testing of mineral fuels and structural materials, and the 
investigation of surface and underground waters. 

The Bureau of Mines, created in 1911, is charged with 
conducting investigations of various problems connected 


THE DEPARTMENT OF THE INTERIOR 


345 

with the mining industry, with particular reference to the 
possibility of reducing the number of accidents in mines. 

The Department of Agriculture.—A so-called ‘‘depart¬ 
ment” of agriculture was established in 1862, though its 
rank was only that of a bureau and its head bore the title 
of commissioner. From time to time, the scope and func¬ 
tions of the “department” were extended until 1889, when 
it was raised to the rank of a cabinet department with a sec¬ 
retary at its head. Like the other departments, it is or¬ 
ganized into bureaus, offices, and divisions. 

The Weather Bureau has charge of the preparation of 
weather forecasts and the display of storm, cold wave, frost, 
and flood warnings for the benefit of agriculture, commerce, 
and navigation. 

The Bureau of Animal Industry conducts the inspection 
of animals, meats, and meat food products under the act of 
Congress of June 30, 1906, and has charge of the inspection 
of import and export animals, the inspection of vessels for 
the transportation of export animals, and the quarantine 
stations for imported live stock; supervises the interstate 
transportation of animals, and reports on the condition and 
means of improving the animal industries of the country. 

The Bureau of Plant Industry studies plant life in its re¬ 
lations to agriculture. It investigates the diseases of plants 
and carries on field tests in the prevention of diseases. It 
studies the improvement of crops by breeding and selection, 
maintains demonstration farms, and carries on investiga¬ 
tions with a view to introducing better methods of farm 
practice. It conducts agricultural explorations in foreign 
countries for the purpose of securing new plants and seeds 
for introduction into the United States. It studies fruits, 
their adaptability to various climates, and the methods of 
harvesting, handling, storing, and marketing them. 


346 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

The Bureau of Forestry is charged with the administration 
of the National Forests. It also gives practical advice in the 
conservation and handling of national, state, and private 
forest lands, and in methods of utilizing forest products; in¬ 
vestigates methods of forest planting, and gives practical 
advice to tree planters; studies commercially valuable trees 
to determine their best management and use; gathers 
statistics on forest products, in cooperation with the bureau 
of the census, and investigates the control and prevention 
of forest fires, and other forest problems. 

The Bureau of Chemistry conducts investigations into the 
chemical composition of fertilizers, agricultural products, 
and food stuffs. In pursuance of the pure food law of 1906, 
it examines foods and drugs intended to be sent from one 
state to another, with a view to determining whether they 
are adulterated or misbranded. It also conducts investiga¬ 
tions of food stuffs imported from abroad and denies entry 
to such as are found unwholesome, adulterated, or falsely 
labeled. It also inspects food products intended to be ex¬ 
ported to foreign countries where standards of purity are 
required. 

Other Bureaus, whose duties are indicated by their titles, 
are: the bureau of soils, the bureau of statistics, the bureau 
of entomology, the bureau of biological survey, the office of 
experiment stations, and the office of public road inquiries. 

The Department of Commerce and Labor is the young¬ 
est of the executive departments, having been created 
in 1903. Most of the bureaus of which it is composed, how¬ 
ever, were already in existence and were transferred to the 
.new department upon its creation. Only two new bureaus, 
were established, namely, the bureau of corporations and 
the bureau of manufactures. 

The Bureau of Labor, first organized in 1885 as a bureau 


THE DEPARTMENT OF COMMERCE AND LABOR 347 

in the department of the interior, is charged with collecting 
and diffusing among the people of the United States useful 
information on subjects connected with labor in the most 
general and comprehensive sense of that word, and espe¬ 
cially upon its relations to capital, the hours of labor, the 
earnings of laboring men and women, and the means of pro¬ 
moting their material, social, intellectual, and moral pros¬ 
perity. 

It is especially charged with investigating the causes of 
and facts relating to all controversies and disputes between 
employers and employees. It publishes from time to time 
the results of elaborate investigations on various subjects 
relating to labor and industry, and also issues a bimonthly 
bulletin on special topics within the same field. 

The Bureau of the Census is charged with the duty of tak¬ 
ing the decennial census of the United States, including the 
collection of such special statistics as Congress may author¬ 
ize. The first census, that of 1790, was taken under the di¬ 
rection of the United States marshals in their respective 
districts; the statistics collected related only to popula¬ 
tion, and the schedule embraced only six questions. In 1880 
the use of the marshals was done away with and a corps of 
census supervisors provided. Until 1902 the machinery for 
taking the census was organized anew for each census, but in 
the latter year provision was made for a permanent census 
bureau. The schedule of inquiries has increased from dec¬ 
ade to decade until it now embraces a wide range of ques¬ 
tions relating not only to population, but also to vital sta¬ 
tistics, agriculture, manufactures, defective and criminal 
classes, cotton production, statistics of cities, state and local 
finances, tmnsportation, mining, and various other matters, 
the results of which are published in a series of large volumes 
and in special bulletins. At the head of the bureau is a di- 


34 ^ THE CABINET AND THE EXECUTIVE DEPARTMENTS 

rector, who is aided by an assistant director, a number of 
statisticians and experts, and a corps of local supervisors 
and enumerators. The census work was in charge of the 
department of state until 1850, when it was transferred to 
the department of the interior. 

The Bureau of Statistics is charged with the collection and 
publication of statistics of our foreign commerce, as well as 
those relating to the leading features of our internal com¬ 
merce. A monthly summary of finance and commerce is 
issued; also reports on special topics of a commercial char¬ 
acter. The bureau prepares the statistical abstract con¬ 
taining a variety of information regarding the administra¬ 
tion of the national government. 

The Bureau of Navigation is charged with the general 
superintendence of the merchant marine of the United 
States and of the enforcement of the navigation laws. It 
has charge of the registration of American vessels engaged 
in the foreign trade, and of the enrollment and licensing of 
vessels in the coasting trade. It supervises the execution of 
the tonnage laws and the collection of tonnage duties; pre¬ 
pares an annual list of vessels registered under the American 
flag; and supervises the work of the United States shipping 
commissioners, who administer the laws for the protection 
of seamen.^ 

The Steamboat Inspection Service is charged with the ad¬ 
ministration of the laws providing for the inspection of 
steam and sailing vessels registered under the American 
flag; with the examination and licensing of officers of such 
vessels, and with the protection of life and property on 
water. At the head of the service is an inspector general, 
who is aided by ten supervising inspectors, each of the latter 

^ This bureau must not be confused with the bureau of navigation 
in the navy department, already described. 


THE DEPARTMENT OF COMMERCE AND LABOR 349 

having under his supervision a number of local inspectors 
stationed at the important commercial ports. All vessels 
must be inspected once a year as to their safety, construc¬ 
tion, and facilities for protection against fire. 

The Bureau of Fisheries has control of fish hatcheries in 
many parts of the country, for the propagation of useful 
food fishes; studies fish culture and the causes of the de¬ 
crease of food fishes; collects statistics in regard to the 
fishery industry; and in general promotes the fishery inter¬ 
ests. It supervises the salmon fisheries of Alaska and the 
fur seal industry on the Pribilof Islands of the Bering Sea. 

The Bureau of Immigration and Naturalization adminis¬ 
ters the immigration and naturalization laws, including the 
Chinese exclusion laws. At the head of the bureau is a com¬ 
missioner general of immigration appointed by the President 
and the senate, who has the power to decide questions ap¬ 
pealed from the decisions of local immigration inspectors 
regarding the right of immigrants to be admitted to the 
United States under the immigration laws.^ 


1 See als© pp. 238-239. The increase in the number of immi¬ 
grants by decades is shown by the following table: 


Decade 

Population at 
Beginning of 
Decade 

Total Number 
of 

Immigrants 

1821-1830. 

9,633,822 

143,439 

1831-1840. 

12,866,020 

599,125 

1841-1850. 

17,069,453 

1,713,251 

1851-1860. 

23,191,876 

2,598,224 

1861-1870. 

31,443,321 

2,314,824 

1871-1880. 

38,558,371 

2,812,191 

1881-1890. 

50,155,783 

5,246,613 

i89r-i900. 

•62,622,250 

3,687,564 

1001-1910. 

75 , 994,575 

8,793,386 

















350 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

The Lighthouse Establishment is charged with the con¬ 
struction and maintenance of lighthouses, light vessels, 
beacons, fog signals, buoys, and other aids to navigation. 
The seaboard is divided up into lighthouse districts, in each 
of which is a naval officer who serves as inspector and has 
immediate charge of the supply, maintenance, and admin¬ 
istration of the lighthouses in his district. At each light¬ 
house there is a keeper and one or more assistant keepers. 
The establishment now consists of more than 1,500 light¬ 
houses and beacons, a fleet of hght-ships, and more than 
6,000 buoys. Since 1910 the service has been under the 
supervision of a commissioner. 

The Bureau of Standards, established in 1901, is charged 
with the custody of the national standards, the testing of 
measuring apparatus, and the investigation of problems re¬ 
lating to standards of weighing and measuring. 

The Coast and Geodetic Survey is charged with the survey 
of the coasts and of rivers to the head of tide water, and 
the publication of charts of the same; the investigation of 
questions relating to temperature, tides, currents, and the 
depths of navigable waters; the making of magnetic obser¬ 
vations; the determination of geographic positions, and the 
like. The results are published in annual reports and spe¬ 
cial publications. It prepares tables, sailing directions, 
charts of the coasts, harbor charts, notices to mariners, and 
other publications for the use of mariners. 

The Bureau of Corporations, created in 1903, was intended 
mainly to furnish an agency for the investigation of corpo¬ 
rations suspected of violating the anti-“trust” laws of the 
United States. It is authorized to investigate the organiza¬ 
tion and methods of any corporation or joint-stock com¬ 
pany engaged in foreign or -interstate commerce (except 
common carriers subject to the interstate commerce act) 


THE DEPARTMENT OF COMMERCE AND LABOR 351 

and to report to the President such information as may be 
of value in enabling him to enforce the anti-‘‘trust” laws and 
in making recommendations to Congress for additional 
legislation. The reports made by the bureau in regard to 
several of the large ‘‘trust” concerns like the beef trust, the 
tobacco trust, and the Standard Oil Company, have been 
made the basis of prosecutions by the federal authorities. 

The Bureau of Manufactures, organized in 1905, is 
charged with fostering and developing the various manu¬ 
facturing interests of the United States and extending the 
markets for manufactured articles abroad, by collecting and 
publishing all available and useful information concerning 
such markets and industries. It publishes daily consular 
and trade reports, besides an annual volume known as the 
“Commercial Relations of the United States.” 

References.— Andrews, Manual of the Constitution, pp. 327-352. 
Beard, American Government and Politics, ch. xi. Bryce, The 
American Commonwealth (abridged edition), ch. viii. . Fairlie, 
National Administration of the U. S., ch. iv. Harrison, This Coun¬ 
try of Ours, chs. xi-xviii. 

Documentary and Illustrative Material.—i. The Congressional 
Directory. 2. Annual reports of the heads of department and other 
officials, such as the commissioner of pensions, the commissioner of 
the general land office, the commissioner general of immigration, the 
civil service commission, the interstate commerce commission, etc. 
These may be obtained gratis from the heads of departments or other 
officials mentioned. 


Research Questions 

1. What is the origin of the term “cabinet”? On what days are 
cabinet meetings now held? 

2. What are the principal differences between the American cab¬ 
inet and the British cabinet? 

3. Do you think the members of the cabinet should be members 


352 THE CABINET AND THE EXECUTIVE DEPARTMENTS 

of Congress? If not, ought they to be allowed seats in Congress with¬ 
out the right to vote? 

4. Do you think the President ought ever to disregard the advice 
of his cabinet? 

5. Give the names of five distinguished secretaries of state since 
1789. 

6. Washington’s first cabinet was composed of an equal number 
of members from both political parties. Would it be wise to follow 
that practice? 

7. Why is the secretary of the treasury required to make his an¬ 
nual reports to Congress while the other heads of departments make 
theirs to the President? 

8. Would it be wise to elect the heads of departments of the 
federal government by popular vote as those of the state governments 
usually are? 

9. Do you think the secretary of war ought to be an army officer 
as is the usual practice in Europe? 

10. Why is the postmaster-generalship usually given to an active 
party manager? 

11. Why is an importer ineligible under the law to appointment as 
secretary of the treasury? 

12. Why is the department of state really misnamed? Would the 
title “department of foreign affairs” indicate more precisely the duties 
of the department? 

13. What is your opinion of the movement to establish a depart¬ 
ment of public health? 

14. Do you think the bureau of education should be raised to the 
rank of a department? The bureau of labor? 


CHAPTER XVIII 


THE FEDERAL JUDICIARY 

Establishment of the Federal Judiciary.—The Articles 
of Confederation, as we have seen, made no provision for 
a national judiciary. Hamilton declared this to be the 
crowning defect of the old government, for laws, he very 
properly added, are a dead letter without courts to ex¬ 
pound their true meaning and define their operations. 
During the period of the Confederation, the national gov¬ 
ernment was dependent for the most part, as has been said, 
on the states for the enforcement of its will. Thus if some 
one counterfeited the national currency, robbed the mails, 
or assaulted a foreign ambassador, there was no national 
court to take jurisdiction of the case and punish the of¬ 
fender. The only way by which he could be brought to 
justice and the authority of the national government up¬ 
held was through the kindly assistance of some state court, 
and this assistance was not always cheerfully lent nor was 
it always effective when tendered. Congress to be sure 
acted as a court for the settlement of disputes between 
the states themselves, but a legislative assembly is never 
well fitted for exercising judicial function's. In the absence 
of a national judiciary it proved impossible to enforce 
solemn treaty stipulations to which the United States was 
a party, a fact which led Great Britain to refuse to carry 
out certain of her treaty engagements with the United 
States. 

Govt. U. S.—23 


353 


354 


THE FEDERAL JUDICIARY 


The Judicial Power of the United States.—The fram-^ 
ers of the Constitution .decided that the jurisdiction of 
the national courts should be restricted to questions of 
national interest and to those involving the peace and 
tranquillity of the Union, such as disputes between the 
states themselves and between citizens of different states, 
and that the jurisdiction of all other controversies should 
be left to the determination of the courts of the several 
states. The jurisdiction of the federal courts, therefore, 
was made to include all cases whether of law or equity 
arising under the national Constitution, the laws of the 
United States, and all treaties made under their authority; 
all cases affecting ambassadors, other public ministers, and 
consuls; all cases of admiralty and maritime jurisdiction; 
all controversies to which the United States is a party; 
all controversies between two or more states; and between 
a state, or the citizens thereof, and foreign states or citi¬ 
zens or subjects thereof.^ 

The wisdom and propriety of giving the federal courts 
jurisdiction over all such cases are obvious, since they 
involve either national, interstate, or international ques¬ 
tions. Manifestly, the state courts could not properly 
be left to determine finally controversies involving the 

1 In two classes of these cases, namely, those in which ambassadors, 
other public ministers, and consuls are parties and those in which a 
state is a party, the Supreme Court has original jurisdiction, that 
is, the right to hear and determine the case in the first instance. 
But that does not mean that the Supreme Court has exclusive juris¬ 
diction in such cases. Other federal courts may try such cases, and as 
a matter of fact few original suits have ever been brought in the 
Supreme Court. In the other classes of cases mentioned, the Supreme 
Court has appellate jurisdiction (with such exceptions as Congress 
may make), that is, such cases must be commenced in the lower courts, 
from which they may be taken on appeal to the Supreme Court. 


THE JUDICIAL POWER OF THE UNITED STATES 355 

meaning or the application of provisions of the federal Con¬ 
stitution, laws, or treaties, since in that case they would 
not be what they are declared to be, namely, the supreme 
law of the land. Conflicting decisions would be rendered 
by the courts of different states, and in case of inconsist¬ 
ency between state constitutions and laws on the one 
hand and the federal Constitution, laws, and treaties on 
the other, the state courts would be under the temptation 
to uphold the validity of the former. 

The Eleventh Amendment .—As originally adopted, the 
Constitution permitted suits to be brought in the federal 
courts against a state by citizens of another state or by 
citizens of foreign countries, and when a suit brought 
against the state of Georgia in 1793 by a citizen of South 
Carolina named Chisholm for the recovery of a debt was 
actually entertained by the Supreme Court, widespread 
popular indignation followed the decision. The authorities 
of Georgia felt that it was derogatory to the dignity of a 
sovereign state that it should be made the defendant in a 
suit brought by a private individual, and a demand was 
made that the Constitution be amended so as to prevent 
such ‘‘suits” in the future. As a result of this demand, the 
Eleventh Amendment was adopted in 1798 which declared 
that the judicial power of the United States should not be 
construed to extend to suits brought against a state by 
citizens of another state or of a foreign country. Neverthe¬ 
less while a state cannot be made a defendant in a federal 
court at the instance of a private individual of another 
state, the federal courts may entertain jurisdiction of suits 
between a state and a citizen of another state provided the 
state is the plaintiff. 

How Cases Arise ''’—A case “arises” under the Con¬ 
stitution, laws, or treaties whenever a suit is filed involving 


THE FEDERAL JUDICIARY 


356 

a right or privilege thereunder. Until a case “arises,” that 
is, until it comes before the courts in due form, they will 
take no notice of it. When President Washington in 1793 
sought the opinion of the Supreme Court on certain points 
involving our obligations to France under the treaty of 
alliance of 1778 it declined to answer his question, holding 
that it could give opinions only in cases properly brought 
before it. 

The Regular Federal Courts.—The Constitution de¬ 
clares that the judicial power of the United States shall be 
vested in one Supreme Court and in such inferior courts 
as Congress may from time to time ordain and establish. 
The Supreme Court, therefore, is the only federal tribunal 
which owes its existence to the Constitution, the others 
being created by statute. Even as to the Supreme Court 
Congress has considerable power of control, since it de¬ 
termines the number of judges of which it shall be composed, 
and the amount of their compensation. But it cannot re¬ 
move any judge except upon impeachment, or reduce his 
compensation after he has once been appointed. 

The Supreme Court is at present composed of one Chief 
Justice and eight associate justices. It holds its sessions in 
the city of Washington from October to May of each year. 
Practically all the cases which it hears are those appealed 
from the lower courts. When a case has been argued, the 
court holds a consultation at which the points involved are 
considered and a decision is reached. The Chief Justice 
then requests one of his associates to prepare the opinion 
of the court, or he may prepare it himself, after which it is 
scrutinized by the court at a second conference and ap¬ 
proved. Any member of the court who disagrees with the 
majority may file a dissenting opinion, a right frequently 
taken advantage of. The concurrence of at least five of 


THE REGULAR FEDERAL COURTS 357 

the nine judges is necessary to the validity of a decision, 
and as a matter of fact, many important decisions have 
been rendered in recent years by a bare majority of the 
court. The opinions rendered are published as the United 
States Reports, of which there are now more than 200 vol¬ 
umes. They constitute the great authoritative source of 
the constitutional law of the United States, are studied by 
lawyers and judges, and are relied upon by the courts as 
precedents for the decisions of future cases involving sim¬ 
ilar points of law.’^ There is a reporter who arranges and 
publishes the opinions, a clerk who keeps the records, and 
a marshal who attends the court, preserves decorum, and 
enforces its orders. 

The Circuit Courts of Appeals .—Next below the Supreme 
Court are the circuit courts of appeals, nine in all—one for 
each of the judicial circuits into which the country is di¬ 
vided.^ These courts were created by act of Congress 
in 1891 to relieve the Supreme Court from an accumulation 
of business that rendered the prompt decisions of cases 


^ The justices of the Supreme Court wear black silk gowns when 
holding court. The Chief Justice sits in the middle of a row of chairs, 
his associates being arranged on his right and left in the order of 
seniority of service. 

2 The first circuit embraces Maine, Massachusetts, New Hampshire, 
and Rhode Island; the second, Connecticut, New York, and Vermont; 
the third, Delaware, New Jersey, and Pennsylvania; the fourth, 
Maryland, North Carolina, South Carolina, \drginia, and West 
Virginia; the fifth, Alabama, Florida, Georgia, Louisiana, Mississippi, 
and Texas; the sixth Kentucky, Michigan, Ohio, and Tennessee; 
the seventh, Illinois, Indiana, and Wisconsin; the eighth, Arkansas, 
Colorado, Oklahoma, Iowa, Kansas, Minnesota, Missouri, Nebraska, 
New Mexico, North Dakota, South Dakota, Utah, and Wyoming; 
the ninth, Alaska, Arizona, California, Idaho, Montana, Nevada, 
Oregon, Washington, and Hawaii. 


THE FEDERAL JUDICIARY 


35^ 

impossible, the docket of the court having become so 
overcrowded that it was about three years behind with its 
business. The act creating the circuit courts of appeals, 
however, did not provide an additional class of judges to hold 
these courts, but enacted that each of them should be held 
by three judges assigned for the purpose from among the 
judges of the circuit. The judges of each circuit include 
one -justice of the Supreme Court assigned to the circuit, 
two or more circuit judges appointed for the circuit, and 
a considerable number of district judges, each appointed 
for a district in the circuit. Most circuit courts of appeals 
are held by three circuit judges; but occasionally by two 
circuit judges together with a district judge or the Supreme 
Court justice. The circuit courts of appeals have only ap¬ 
pellate jurisdiction, that is, they hear and determine only 
cases appealed from the lower courts, and their decisions 
are final in most cases. This relieves the Supreme Court 
of all but the most important cases, and enables it to give 
more attention to the cases before it and to dispatch its bus¬ 
iness more promptly. 

Former Circuit Courts .—Prior to 1911 next below the 
circuit courts of appeals were the circuit courts, which were 
held in the different districts witliin the circuit, either by a 
circuit judge or by the justice of the Supreme Court as¬ 
signed to the circuit, or by a district judge, or by the three, 
or any two of them, sitting together. In 1911 the circuit 
courts were abolished and their jurisdiction conferred on the 
district courts. The circuit judges, however, were retained 
and will henceforth sit in the circuit courts of appeal. 

The District Courts .—The lowest grade of federal court 
is the district court, held in each of the districts (about 
eighty) into which the country is divided. In some cases 
a state constitutes one district; in other cases a state is di- 


THE REGULAR FEDERAL COURTS 


359 

vided into two, three, four, or five districts. Usually there 
is one judge for each district, though in a few cases there 
are several judges for a single district, each holding court 
separately. 

The jurisdiction of the district court embraces civil and 
criminal cases under the laws of the United States—such 
as suits for the infringement of patents and copyrights, 
admiralty cases, bankruptcy proceedings, revenue cases; 
and offenses against the United States revenue laws, laws 
against counterfeiting, the public land laws, the pure food 
laws, the postal laws, and the interstate commerce laws. 
Controversies between citizens of different states may also 
be brought to this court. ^ 

In most cases appeals may be taken from the decisions 
of the district courts to the circuit courts of appeals or to 
the Supreme Court. 

Federal Attorneys, Marshals, and Clerks. —In each of the 
federal judicial districts, there is a United States attorney 
who prosecutes violations of the federal laws in his district. 
There is also in each district a United States marshal who 
bears somewhat the same relation to the federal court that 
a sheriff does to a state court. He executes the processes 
of the court, arrests offenders, and performs other minis¬ 
terial functions for. the court. In each district there is a 
clerk who has custody of the seal of the court and keeps a 
record of its proceedings, orders, judgments, etc. The 
marshal and attorney are appointed by the President, but 
the clerk is chosen by the court itself. 

1 Such suits may also be brought in the state courts but may at 
the option of the defendant be transferred to a federal court for 
trial. Many lawyers prefer to bring their suits in the state courts 
even when they have the privilege of suing in the federal courts, be¬ 
cause of their greater familiarity with the procedure of these courts. 


THE FEDERAL JUDICIARY 


360 

In each district, also, the court appoints a number of 
United States commissioners who are empowered to issue 
warrants for arrest, take bail, determine whether accused 
persons shall be held for trial, and perform other duties 
somewhat similar to those discharged by justices of the 
peace under the judicial system of the state. 

The Regular Federal Judges.— Appointment .—All federal 
judges are appointed by the President, by and with the ad¬ 
vice and consent of the Senate. The judges of most of the 
states, as we have seen, are now chosen by popular election, 
but that method did not commend itself to the framers of 
the federal Constitution. The existing method of appoint¬ 
ing federal judges has given general satisfaction, and with 
remarkably few exceptions, the persons appointed to the 
federal bench have been men of integrity and fitness.^ 

The term for which all the regular federal judges are ap¬ 
pointed is good behavior. This is virtually for life, since 
they cannot be removed except by impeachment.^ All 
other officers of the United States are appointed for definite 
terms, usually for four years. Except in a few states, the 
state judges are elected for definite terms ranging from two 
years to twenty-one years (p. 113). The framers of the 
federal Constitution, however, were deeply impressed with 
the advantages of a judiciary possessing the qualities of 
permanency and independence, and they wisely provided 
that the judges should hold their offices so long as their of¬ 
ficial conduct was above reproach. 

Compensation .—The Constitution declares that the judges 
shall receive at stated times a compensation for their serv¬ 
ices which shall not be diminished during their continuance 

1 For a description of the comparative merits of the various methods 
of selecting judges, see pp. 113-114. 

2 For a list of federal judges who have been impeached see p. 194. 


THE REGULAR FEDERAL JUDGES 361 

in office. As we have seen, the compensation of the Presi¬ 
dent can neither be increased nor diminished during the 
time for which he is elected, but the prohibition in the case 
of the judges applies only to a reduction of their salaries. 
Increases are permitted to be made at any time. The com¬ 
pensation now allowed the chief justice of the Supreme 
Court is $15,000 a year, and the associate justices $14,500, 
amounts which are low in comparison with the salaries 
of the highest English judges, who receive $25,000 a year. 
The circuit judges receive $7,000 a year, and the district 
judges $6,000. 

Any judge of a United States court having held his com¬ 
mission ten years and having attained the age of seventy 
years, may retire from the bench and receive the same sal¬ 
ary during the rest of his life that was payable to him at 
the time of his resignation. 

Power of the Supreme Court to Declare Laws Uncon¬ 
stitutional. —An important power of the Supreme Court 
for which there is no direct authority in the Constitution, 
is that of declaring acts of Congress which are in conflict 
with the Constitution, null and void and of no effect. This 
power was first exercised by the Supreme Court in 1801 in 
the famous case of Marbury v. Madison. Congress had 
passed an act giving the Supreme Court original jurisdic¬ 
tion in certain cases where the Constitution says it should 
have appellate jurisdiction, and when the act came before 
the court for enforcement it declined to be bound by it. The 
great chief justice, John Marshall, wrote the opinion of the 
court which held the act of Congress null and void. His 
argument, in brief, was that the Constitution is the supreme 
law of the land and the judges are bound to give effect to it. 
When, therefore, the court is called upon to give effect to a 
law of Congress which is clearly in conflict with the higher 


THE FEDERAL JUDICIARY 


362 

law of the Constitution, it must give the preference to the 
latter, which has the superior obligation, otherwise the dec¬ 
laration in favor of the supremacy of the Constitution 
would have no meaning. Down to 1911 the Supreme Court 
had declared twenty-one acts of Congress unconstitutional. 

Power to Declare State Laws Unconstitutional .—Laws 
passed by the state legislatures, ordinances of municipal 
councils, and even the provisions of state constitutions 
themselves may be declared null and void by the Supreme 
Court in case they are in conflict with the national Consti¬ 
tution or the laws and treaties made in pursuance thereof. 
It has already been pointed out that appeals may, be 
taken to the federal Supreme Court from the highest 
courts of a state whenever a right, title, or privilege under 
the federal Constitution is involved and the state cou'rt has 
decided against the right or privilege claimed. Thus where 
one is prosecuted and convicted under a state law or provi¬ 
sion of a state Constitution which he claims is contrary to 
some provision in the federal Constitution or laws, he has 
a right to appeal to the United States Supreme Court and 
have the question of the constitutionality of the state law 
finally determined there. This is a necessary consequence 
of the supremacy of the federal Constitution and laws over 
those of the states. More than 200 acts of state legislatures 
have been pronounced null and void by the United States 
Supreme Court.^ 

Sometimes inferior federal courts declare acts of Congress 
and of the state legislatures to be unconstitutional, but in 
all such cases an appeal may be taken to the Supreme Court 
for final review. 

Special Courts of the United States.—In addition to 
the three classes of United States courts, already described, 
^ Baldwin, “ The American Judiciary,” p. 106. 


SPECIAL COURTS OF THE UNITED STATES 363 

several tribunals of a special or temporary character have 
been created to hear and determine particular classes of 
controversies. Some of these courts are held by judges who 
are appointed for definite terms. 

The Court of Claims was created in 1855 to pass upon 
claims against the government. It consists of a chief Justice 
and four associate justices who serve during good behavior. 
It is a well-established principle of public law that a sover¬ 
eign state cannot be sued against its will. Before the crea¬ 
tion of this court claims against the government had to be 
considered by Congress, a body which aside from being ill 
fitted for the hearing of such cases, was overburdened by the 
necessity of considering the large number of claims annually 
laid before it. The government now allows itself to be sued 
in this court on most claims of a contractual nature, but 
the judgments of the court cannot be paid until Congress 
appropriates the money for their payment, and hence the 
court cannot issue an execution to enforce its findings. At 
each session of Congress, an appropriation is made to sat¬ 
isfy any judgments made or which may be made by the 
court. Appeals are allowed to be taken from the court of 
claims to the Supreme Court on questions of law. Among 
the more important classes of claims that have been adjudi¬ 
cated by this court were the French Spoliation claims, and 
Indian depredation claims, both involving numerous claims 
and very large amounts in the aggregate. 

In 1906 a United States court was established in China 
to exercise jurisdiction in certain cases previously exercised 
by the consuls. It is held by a single judge appointed by 
the President for a term of four years. 

The tariff law of 1909 created a United States Court of 
Customs Appeals, consisting of a presiding judge and four 
associates, to hear appeals from the board of general ap- 


364 the federal judiciary 

praisers in cases involving the construction of the law and 
facts respecting the classification of imported articles and 
the rate of duty imposed thereon. 

In 1910 Congress created a Commerce Court, consisting 
of five circuit judges, to decide appeals from the orders of 
the Interstate Commerce Commission. ‘ 

In the District of Columbia Congress has created two 
courts, with judges appointed to hold office during good 
behavior: the supreme court of the district, consisting of 
a chief justice and five associate justices; and the court 
of appeals, consisting of a chief justice and two associate 
justices. Appeals may be taken from the former to the 
latter, whose decisions in some cases are reversible by the 
Supreme Court of the United States. Appeals may also 
be taken from the decisions of the commissioner of patents 
to the court of appeals of the District of Columbia. 

In each of the territories there are supreme and district 
courts established by Congress in pursuance of its power to 
provide for the government of the territories, but they are 
not considered as a part of the judicial system of the United 
States, although the judges are appointed by the President.^ 

Constitutional Protections in the Federal Courts.—The 
Constitution contains a number of provisions intended to 
protect accused persons against unauthorized prosecutions 
in the federal courts, as well as against arbitrary procedure 

^ In most of the countries of continental Europe there is a special 
class of tribunals called “administrative courts” to decide contro¬ 
versies between private individuals and the public authorities. There 
are no such courts in the United States, although the customs court, 
the commerce court, and the court of claims bear some resemblance 
to an administrative court. Many “administrative” questions are 
decided by such officials as the secretary of the treasury, the com¬ 
missioner of immigration, and the commissioner of patents. 


CONSTITUTIONAL PROTECTIONS 365 

in the course of the trial. As the Constitution originally 
stood, it contained few provisions of this kind; and this fact 
constituted one of the most serious objections urged against 
the ratification of that instrument. In consequence of this 
the first ten Amendments were adopted in 1790, and of these 
no less than five relate to the rights of accused persons on 
trial in the federal courts. 

Most important of all, perhaps, the Sixth Amendment de¬ 
clares that in criminal prosecutions (in the federal courts) 
the accused shall enjoy the right to a speedy and public 
trial, by an impartial jury of the state and district wherein 
the crime shall have been committed; that he shall be in¬ 
formed of the nature and cause of the accusation; that he 
shall have the right to be confronted by the witnesses against 
him; that he shall have compulsory process for obtaining 
witnesses in his favor; and that he shall have the assistance 
of counsel for his defense.^ 

The Fifth Amendment protects the accused from prose¬ 
cution in capital cases or cases involving infamous crime ex¬ 
cept upon indictment by a grand jury. Some of the states, 
as we have seen, have abolished the grand jury, and 
provided for prosecutions in their courts without the inter¬ 
vention of such an agency, but no person may be prosecuted 
in a federal court for a serious crime until he has been held 
for trial by a grand jury. The same amendment also for¬ 
bids the trial of a person a second time for the same offense, 
if he was acquitted on the first trial; declares that he shall 
not be compelled to testify against himself; that he shall 
not be deprived of life, liberty, or property without due 
process of law; and that his private property shall not be 
taken for public use without just compensation. 

1 The purpose and meaning of these guarantees are discussed in 
chapter vi, pp. 118-119. 


THE FEDERAL JUDICIARY 


366 

The Fourth Amendment declares among other things that 
no warrant for arrest (by the federal authorities) shall be 
issued except upon probable cause, supported by oath or 
affirmation and particularly describing the person to be 
seized. This provision is designed to prevent arbitrary ar¬ 
rests of persons on mere suspicion. It prohibits general 
search warrants such as were commonly used by the British 
authorities in the colonies prior to the outbreak of the 
Revolution and which were popularly known as “writs of 
assistance.” Such warrants did not mention the name of 
the person to be arrested but permitted the officer to insert 
any name in the warrant and arrest whomsoever he might 
choose. 

The Eighth Amendment declares that excessive bail shall 
not be required, nor excessive fines imposed, nor cruel and 
unusual punishment inflicted. The purpose of the first pro¬ 
vision is discussed on p. 119. The purpose of the other 
two prohibitions is to prevent the old severities of the penal 
code that were common two hundred years ago. 

Treason .—Among the crimes in the prosecution of which 
judges were frequently arbitrary and which were punished 
with undue severity, was that of treason. Treason has al¬ 
ways been regarded as the highest crime known to society, 
because it seeks the overthrow or destruction Of the gov¬ 
ernment itself. In earlier times,' judges frequently con¬ 
strued offenses to be treasonable which were not declared 
so by the laws. This was known as constructive treason. To 
prevent them from construing the existence of treason 
where it really did not exist, parliament therefore passed a 
statute during the reign of Edward III defining the offense 
with more or less precision, and this definition in substance 
was incorporated in the Constitution of the United States. 
This provision declares that treason against the United 


CONSTITUTIONAL PROTECTIONS 367 

States shall consist only in levying war against them or in ad¬ 
hering to their enemies, giving them aid and comfort. The 
Supreme Court in interpreting this provision has ruled that 
in order to constitute treason there must be an actual levy¬ 
ing of war or an assembling of persons for the purpose of 
making war; that a mere conspiracy to subvert the govern¬ 
ment by force is not treason, but after the war has once be¬ 
gun, all those who perform any part, however minute or re¬ 
mote, or who give aid and comfort to the enemy, are traitors 
and as such are liable to the penalties of treason. To pro¬ 
tect persons accused of treason against conviction upon the 
testimony of a single witness, the Constitution requires the 
testimony of two witnesses to the act, or confession in open 
court, to convict. Congress is authorized to prescribe the 
punishment of treason, but the Constitution declares that 
no attainder of treason shall work corruption of blood or 
forfeiture except during the life of the person attainted. 
Under the old law, a person convicted of treason was not 
only put to death in a barbarous manner, but his blood was 
considered as “corrupted” or “attainted,” so that as a mat¬ 
ter of course, without any decree of the court to that effect, 
his children could not inherit property or titles through him. 
Thus the innocent offspring of the traitor were punished 
for the offense of the parent. The provision of our Consti¬ 
tution places the punishment on the offender alone. 

References. — ^Andrews, Manual of the Constitution, pp. 201-223. 
Baldwin, The American Judiciary, ch. ix. Beard, American Govern¬ 
ment and Politics, ch. xv. Bryce, The American Commonwealth 
(abridged edition), chs. xxi-xxii. Harrison, This Country of Ours, 
chs. xx-xxi. Hart, Actual Government, ch. xvii. 

Documentary and Illustrative Material.— i. The Congressional Di¬ 
rectory, which contains a list of the higher judges and the judicial dis¬ 
tricts. 2. Specimen copies of decisions of the Supreme Court. These 
may be obtained from the clerk of the Supreme Court at Washington. 


368 


THE FEDERAL JUDICIARY 


Research Questions 

1. Name the Chief Justices of the United States Supreme Court 
from 1789 to the present time. 

2. Name the present members of the Supreme Court and give the 
date of the appointment of each, (See Congressional Directory). 

3. In which one of the nine judicial circuits of the United States 
do you live? Who is the Supreme Court justice assigned to the cir¬ 
cuit? Who are the circuit judges of the circuit? 

4. Who is the United States district judge for your district? At 
what places in your state are United States district courts held? 

5. Who is the United States attorney for your district? The United 
States marshal? 

6. What is meant by the terms “constitutional” and “uncon¬ 
stitutional ” as applied to an act of Congress? Do you think the courts 
should be allowed to declare a law unconstitutional? 

7. Do you think it is a wise provision which allows federal judges 
to serve during good behavior? 

8. It has been proposed by a well-known public man that federal 
judges should be elected by the people. What is your opinion of the 
proposition? 

9. Do you think the present salary allowed justices of the Supreme 
Court large enough to attract the best judicial talent? 

10. Do you think the Supreme Court is ever justified in reversing 
its own decisions, or should it stand by the precedents? 

11. What is the meaning of the term obiter dicta as applied to a 
judicial opinion? 

12. Do you think it is a wise practice for judges who disagree with 
tilie majority of the court to file dissenting opinions? 

13. A recent President took occasion to criticize publicly a federal 
judge for a decision which he rendered in a “trust” case. Do you 
think judges should be criticized for their decisions? 

14. Are juries ever made use of in federal courts? If so, when? 

15. Why have federal judges been criticized for issuing injunctions? 

16. When may an appeal be taken from a state court to a federal 
court? 

17. The Supreme Court has always refused to decide “political” 
controversies. What is a “political” as opposed to a “legal” con¬ 
troversy? Give examples. 


CHAPTER XIX 


GOVERNMENT OF THE TERRITORIES AND DEPENDENCIES 

Power of Congress over the Territories.—The Consti¬ 
tution expressly confers upon Congress the power to dispose 
of and make all needful rules and regulations respecting the 
territory or other property belonging to the United States. 
In dealing with the territories the powers of Congress are 
general or residuary in character, whereas when it legislates 
for that part of the country which has been erected into 
states, its powers are specifically enumerated. Congress, 
therefore, may establish practically any form of government 
in the territories that it chooses. It may, if it wishes, set up 
therein a military government or it may grant them civil 
government with such limitations and exceptions as it may 
wish. In the latter case it may allow the inhabitants a 
legislative assembly for purposes of local legislation, or Con¬ 
gress may legislate directly for them itself. And in case it 
permits the inhabitants to have a legislative assembly of 
their own and to enact their own laws. Congress may veto 
or modify any law passed by such legislature. Indeed, says 
the Supreme Court, Congress may make valid an invalid 
act passed by a territorial legislature as well as declare in¬ 
valid a valid act passed by it. 

Does the Constitution Extend to the Territories ?—A subject 
much discussed, especially at the time of the acquisition of 
Porto Rico and the Philippines, was whether such provisions 
Govt. U. S.— 24 369 


370 GOVERNMENT OF THE TERRITORIES, ETC. 

of the Constitution as were applicable extended of their 
own force to new territories immediately upon the estab¬ 
lishment of American sovereignty over them; that is, 
whether the Constitution “follows the flag” or whether its 
provisions apply only when extended by act of Congress. 
One party asserted that such provisions go wherever the 
sovereignty of the United States goes, that the government 
cannot be carried to any new territory unless accompanied 
by the Constitution from which it derives its authority, and 
that Congress has no power to withhold such provisions as 
are applicable. The other party maintained that the Con¬ 
stitution was established only for the people of the United 
States; that whenever new territories have been acquired, 
Congress has extended such provisions as it saw fit; and 
that Congress is unlimited as to its power in dealing with 
the inhabitants of such territories. The Supreme Court in 
the famous Insular Cases, decided in 1900 and 1901, upheld 
the latter view and ruled that for all practical purposes the 
territories of the United States are completely subject to 
the legislative authority of Congress, and that it is not even 
restricted by those provisions of the Constitution which 
were adopted for the protection of individual liberty. In 
practice Congress has always extended to the domestic 
territories such provisions of the Constitution as were ap¬ 
plicable, thus putting the inhabitants upon the same foot¬ 
ing as those of the states so far as the enjoyment of civil 
rights are concerned, but not as to political rights. So far 
as the insular territories are concerned, it ha,^ also extended 
most of the provisions relating to civil rights, though in the 
case of the Philippines a few safeguards such as the right 
of indictment by grand jury, trial by jury, and the right to 
bear arms have been withheld. 

The Origin of the Territorial System.—Before the Con- 


THE ORIGIN OF THE TERRITORIAL SYSTEM 371 

stitution was adopted, Congress had acquired by cession 
from certain of the original states a vast domain of territory 
north of the Ohio River, and later it acquired a considerable 
domain lying south of the Ohio (p. 159). One of the condi¬ 
tions upon which the territory north of the Ohio was ceded, 
was that Congress should form the territory into distinct 
republican states which should be admitted to the Union on 
an equal footing with the old states. It was felt, however, 
that the territory in question should be put through a sort 
of preparatory stage before being erected into states; that 
is, it should be held in a state of dependency until the popu¬ 
lation was sufficiently numerous to maintain a state gov¬ 
ernment and the inhabitants had acquired sufficient politi¬ 
cal capacity to manage their own public affairs. 

TJte Northwest Territory .—By the famous Ordinance of 
1787, Congress provided a scheme of government for the 
northwest territory, and when the cessions of territory south 
of the Ohio were made, the provisions of the Ordinance (ex¬ 
cept that which prohibited slavery) were extended thereto. 
The Ordinance provided for two grades of government: one 
for the territory before its population should amount to 
5,000 inhabitants; the other for the territory thereafter. 
The principal difference was that in the former case the 
territory was to have no local legislature of its own, while 
in the latter it was to have a legislative assembly. The 
scheme of government provided in the beginning was to 
consist of a governor, a secretary, and three judges, ap¬ 
pointed by the President. No legislature as has been said 
was provided, but the governor, secretary, and judges were 
empowered, not to make new laws, but to select such laws 
from the statutes of the old states as were suitable. 

When the population had reached 5,000 inhabitants, the 
territory was given the second grade form of government, 


372 GOVERNMENT OF THE TERRITORIES, ETC. 

that is, it was allowed a local legislature, the lower house of 
which was elected by the inhabitants on the basis of a re¬ 
stricted suffrage, the upper house or council to be appointed 
by the President from a list nominated by the lower house. 
The territory was now allowed to send a delegate to Con¬ 
gress with a right to a seat in that body, but no right to vote. 

The scheme of government thus provided for the north¬ 
west territory became the model for the later territorial 
governments. It was introduced into the southwest terri¬ 
tory and later to the territory acquired west of the Missis¬ 
sippi River. 

Government of the Fully Organized Territories: New 
Mexico, Arizona, and Hawaii.—The territories and other 
dependencies of the United States may be grouped into 
three classes. The first class, which embraces New Mexico, 
Arizona, and Hawaii,^ includes those which are said to be 
fully “organized,” that is, which have their own local legis¬ 
latures, both houses of which are popularly elected.^ 

1 At the time this was wiitten (May, 1911) Arizona and New 
Mexico were in the process of becoming states. When they are 
admitted to the Union Hawaii will be the only remaining organized 
territory. 

The Hawaiian Islands were annexed to the United States in July, 
1898, by a joint resolution of Congress after a treaty of annexation 
had been rejected by the senate. The senate of Hawaii is composed of 
fifteen members, the house of thirty; ability to speak, read, and write 
the English or Hawaiian language is required of voters; the governor 
may veto special items in appropriation bills; and in case the legis¬ 
lature fails to pass appropriation bills to pay the necessary expenses 
for carrying on the government and meeting its obligations, the 
treasurer may, with the approval of the governor, make such pay¬ 
ments, for which purpose the sums appropriated in the last appropria¬ 
tion bills shall be deemed to have been reappropriated; the purpose 
being to prevent the legislature from causing deadlocks by refusing to 
pass the necessary appropriation bills. 


GOVERNMENT OF FULLY ORGANIZED TERRITORIES 373 

Executive .—In each fully organized territory there is a 
governor who is appointed by the President with the con¬ 
sent of the senate for a term of four years, and who enjoys 
the usual powers of a state executive. The appointment 
is usually made from the residents of the territory, though 
in a few cases outsiders have been appointed. There is 
also a secretary who keeps the records of the territory, com¬ 
piles and publishes the acts of the legislature, and serves as 
governor during the absence or disability of the latter 
official. Other administrative officers are the attorney- 
general, treasurer, commissioner of public lands, superin¬ 
tendent of public education, surveyor, and auditor. 

The Legislature, following the Wisconsin, Iowa, and Ore¬ 
gon models, is composed of two houses, both of which are 
popularly elected for a term of two years. The upper house 
in Arizona and New Mexico is composed of not more than 
twelve members and the lower house of not more than 
twenty-four. Regular sessions of the legislature are held 
every two years and are limited to sixty days, though the 
governor may call extraordinary sessions with the ap¬ 
proval of the President of the United States. 

The territorial legislature is empowered to enact laws in 
respect to all rightful subjects of legislation not inconsistent 
with the laws and Constitution of the United States. Con¬ 
gress, however, has from time to time imposed various limi¬ 
tations upon the power of the territorial legislatures, and 
there is a tendency to increase the restrictions, especially in 
regard to financial matters. 

Judiciary .—For the administration of justice, there is 
in each fully organized territory a supreme court, a num¬ 
ber of district courts, and such inferior courts as the legis¬ 
lature may create. The judges of the higher court are all 
appointed by the President of the United States for a term 


374 government of the territories, etc. 

of four years. In each territory also there is a United States 
district court, a district attorney, and a marshal. 

Finally, each territory is given a limited representation 
in the Congress of the United States through a delegate who 
is elected every two years and who is allowed a seat in the 
house of representatives with a right to serve on commit¬ 
tees and take part in debate, but not to vote. 

Partly Organized Territories.—The second group of 
territories, according to our classification, includes those 
which are only partly ^‘organized,” that is, which have 
legislatures one house of which is elected and the other ap¬ 
pointed. This group embraces Porto Rico and the Philip¬ 
pines, which were acquired from Spain in 1898. Unlike the 
territories of the first group described above (except 
Hawaii) Porto Rico and the Philippines are inhabited by a 
foreign race, are situated in a tropical climate, and had been 
at the time of their cession to the United States for cen¬ 
turies governed by an entirely different system of laws and 
administration from that to which the people of the United 
States were accustomed. 

Porto Rico .—The Executive branch of the government of 
Porto Rico consists of a governor and six heads of admin¬ 
istrative departments,— a secretary, an attorney-general, a 
treasurer, an auditor, a commissioner of the interior, and a 
commissioner of education,—all of whom are appointed by 
the President for a term of four years. The governor and 
the secretary have the usual powers of the chief executive 
and secretary of an organized territory. The duties of the 
other officers are, in the main, indicated by their titles. In 
the selection of these officials, the President may choose 
either Americans or Porto Ricans, but up to 1911 he has 
appointed only Americans. 

The Legislature of the island is composed of two houses, 


PORTO RICO 


375 

one of which is made up of members appointed by the Pres¬ 
ident, and the other of members elected by the qualified 
voters of the island. The popular chamber is known as the 
house of delegates and is composed of thirty-five members, 
elected, five from each of the seven districts into which the 
island is divided. By a law of 1904, practically universal 
manhood suffrage was established except that after July i, 
1906, no new name was to be added to the registration list 
unless its bearer was able to read and write. 

The upper house, known as the executive council, con¬ 
sists of the six heads of departments mentioned above and 
five other persons appointed by the President for a term of 
four years. Of these eleven members, not less than five 
must be inhabitants of Porto Rico. The practice has been 
to keep the council so constituted as to give the American 
members control of it. In addition to its legislative func¬ 
tions, the council exercises various administrative duties. 
Recently there has been more or less friction between the 
two houses, owing to the fact that the house of delegates, 
which is controlled by the Porto Rican element, has insisted 
upon demands which the council, controlled by the Ameri¬ 
cans, refused to grant. Taking advantage of its power over 
appropriations, the house of delegates refused to allow the 
appropriation bill to be passed, in the hope of extorting con¬ 
cessions from the council. The result was a deadlock, and 
the government was without means to meet its current ex¬ 
penses. To prevent similar occurrences in the future. Con¬ 
gress in 1910 passed an act providing that when the legisla¬ 
tive assembly should fail to pass the appropriation bill, the 
amount appropriated in the last appropriation bill should 
be considered as appropriated—a provision which is a part 
of the organic act for Hawaii and is also the law in the 
Philippines. 


376 GOVERNMENT OF THE TERRITORIES, ETC. 

Judiciary .—The elaborate system of Spanish courts 
and the Spanish legal system generally have been done 
away with, and in their place a system of law and pro¬ 
cedure and a judicial system modeled upon those of the 
American states have been substituted. There is a su¬ 
preme court consisting of five judges appointed for life 
by the President, and of these, three are Porto Ricans and 
two Americans. Below this court are a number of dis¬ 
trict courts each of which is presided over by one judge ap¬ 
pointed by the governor with the consent of the council for 
a term of four years. There are also twenty-four municipal 
courts, and in the several towns there are courts held by the 
justices of the peace. 

Resident Commissioner at Washington .—The interests of 
the island are looked after at Washington by a resident 
commissioner who is elected by the qualified voters for a 
term of four years. Unlike the delegate from an organized 
territory he has no right to a seat in the house of represent¬ 
atives, but the house has granted him the courtesy of this 
privilege. He is, however, entitled to official recognition 
by all the executive departments whenever he wishes to dis¬ 
cuss with them matters of business affecting Porto Rico. 

The island has its own internal revenue system for raising 
taxes, and the receipts from all customs duties on goods im¬ 
ported into the island are turned into the insular treasury. 
Unlike the Philippines, however, the island does not have 
its own monetary system, but uses that of the United States. 

The Philippines.—The problem of governing the Philip¬ 
pines has proved much more difficult than that of govern¬ 
ing Porto Rico. Instead of a single island inhabited by a 
fairly homogeneous population, the Philippine archipelago 
consists of several hundred islands inhabited by various 
races and peoples representing almost every stage of de- 


THE PHILIPPINES 


377 

velopment from savagery to fairly complete civilization. 
It has been a difficult problem to develop a system of gov¬ 
ernment adapted to the needs and capacities of so many 
different elements. In addition to the difficulties presented 
by these conditions, the Filipinos in various parts of the 
archipelago have resisted American rule, and no .small 
amount of effort and expenditure of money has been directed 
toward the suppression of outbreaks and the maintenance 
of order. 

Organic Act of igo2 .—In 1902 Congress passed an organic 
act for the government of the islands, and shortly thereafter 
William H. Taft was inaugurated civil governor. This act 
continued for the most part the form of government that 
had been created by the Philippine Commission. The or¬ 
ganic act provided, however, that as soon as the insurrec¬ 
tion then existing was suppressed, a census of the inhabit¬ 
ants should be taken and if the islands were in a state of 
peace, steps should be taken toward the establishment of a 
legislative assembly, the lower house of which should be 
popularly elected. This provision was duly carried out, 
and in 1907 the assembly was chosen. 

The Executive department consists of a commission of nine 
members, including the governor (five Americans and four 
Filipinos), appointed by the President. This commission 
also serves as the upper house of the legislature. The lower 
house or assembly is chosen by the people, the qualifications 
for voting including ability to read, write, and speak Eng¬ 
lish or Spanish, or the ownership of a certain amount of 
property. The members are chosen for two years, and the 
legislature holds annual sessions. 

Resident Commissioners .—The assembly is allowed to 
choose two resident commissioners to look after the inter¬ 
ests of the islands at Washington, and they are entitled to 


378 GOVERNMENT OF THE TERRITORIES, ETC. 

recognition by any of the executive departments whenever 
they have business to transact with them. Although not 
entitled to seats in Congress, the house of representatives 
has, as a matter of courtesy, extended them the privilege 
of attending the sessions and serving on certain committees. 

The Judicial System of the islands consists of a supreme 
court of seven judges who are appointed by the President, 
a court of first instance in each province, the judges of 
which are appointed by the commission for good behavior, 
and various courts of justices of the peace. Unlike Porto 
Rico and Hawaii, no United States district court has been 
established in the islands. Appeals lie from the supreme 
court of the islands directly to the United States Supreme 
Court in all cases in which the Constitution or any statute 
or treaty is involved or in which the amount in controversy 
exceeds $25,000. 

Local Government .—Each province is governed by a board 
consisting of a governor, a treasurer, and a supervisor, the 
first mentioned being elected by the voters, the others ap¬ 
pointed by the commission. The organized municipalities 
are governed by elective councils. Special provision is 
made for the government of the Moro province, Benguet, 
and the districts inhabited by certain non-Christian and 
uncivilized tribes. 

The Unorganized Territories and Dependencies. —The 
third group of territories or dependencies embrace those 
which have no legislative assembly whatever. These in¬ 
clude Alaska, the Samoan Islands, Guam, the Panama 
Canal Zone, and the District of Columbia. 

Alaska, acquired by purchase from Russia in 1867, was 
for seventeen years after its acquisition admifiistered di¬ 
rectly by the President without any express authority from 
Congress. In 1884, however, an act was passed providing 


UNORGANIZED TERRITORIES AND DEPENDENCIES 379 

a system of civil government for the territory, to be ad¬ 
ministered by a governor appointed by the President for 
a term of four years. The general laws of the state of 
Oregon, so far as applicable, were extended to the terri¬ 
tory. In'1898 a criminal code was provided for the terri¬ 
tory, and in 1900 a complete civil code and a code of civil 
procedure were enacted. The governor is assisted by a sur¬ 
veyor general who is ex officio the secretary of the treasury. 
There is a United States district court for the territory and 
a number of commissioners who have the powers of justices 
of the peace. The territory sends a delegate to Congress 
who has the usual powers of a territorial representative. 

The Samoan Islands, the chief of which is Tutuila with 
its valuable harbor of Pagopago, are governed by a naval 
officer—the commandant of the naval station at Tutuila. 
He makes the laws and regulations for the islands, and sees 
that they are enforced, but so far as possible the inhabitants 
are allowed to govern themselves. The political needs of 
the people are few, and the governmental organization is 
simple. 

Guam was seized by the United States during the war 
with Spain, and was retained by the treaty of peace. Like 
Samoa, it is governed by the naval officer in command of 
the naval station.^ 

The Panama Canal Zone is a strip of land ten miles wide 
extending from the Atlantic to the Pacific Ocean across 
the Isthmus of Panama, and was acquired by treaty from 
the Republic of Panama in 1904, upon the payment of 
$10,000,000. Soon after the conclusion of the treaty, Con- 

1 Other insular possessions of the United States are Wake Island, 
Midway or Brooks Island, Howland and Baker Islands, all in the 
Pacific Ocean. They are practically uninhabited and no provision for 
their government has been found necessary. 


380 GOVERNMENT OF THE TERRITORIES, ETC. 

gress passed an act placing the entire government of the 
Canal Zone in the hands of the President. The powers of 
the President are exercised through the Isthmian Canal 
Commission consisting of seven members, one of whom 
acts as governor of the Zone. The commission has author¬ 
ity to make and enforce all needful rules and regulations for 
the government of the Zone and to enact such local legis¬ 
lation as may be needed, subject to the condition that it 
must not be inconsistent with the constitution, laws, or 
treaties of the United States, and subject to the further con¬ 
dition that all such laws and regulations must be approved 
by the secretary of war, under whose direction the canal is 
being constructed and the government of the Canal Zone 
administered. 

The District of Columbia is a territory with an area of 
seventy square miles, and was ceded to the United States in 
1790 for the site of the national capital. The district was 
administered from 1801 to 1871 under the forms of munic¬ 
ipal government, that is, by a mayor and council, but in 
the latter year Congress vested the government in a gover¬ 
nor, a secretary, a board of public works, a board of health, 
and a legislative assembly. At the same time the district 
was allowed to send a delegate to Congress. Largely on 
account of the extravagance of this government in under¬ 
taking expensive public improvements. Congress in 1874 
abolished the whole scheme and established the present 
system, which vests practically all governmental powers in 
the hands of a commission of three persons appointed by 
the President. Two of these must be appointed from civil 
life and the other must be an officer belonging to the engi¬ 
neering corps of the army. This commissioner has the 
general direction of administrative affairs and the appoint¬ 
ment of employees, and exercises wide powers of a quasi 


UNORGANIZED TERRITORIES AND DEPENDENCIES 381 

legislative character, such as the issuing of health and 
police regulations. The legislature of the district, however, 
is the Congress of the United States. In each house there 
is a committee on* the District of Columbia to which all 
bills relating to the district are referred, and on one day of 
each week an hour is set apart in the house of representa¬ 
tives for the consideration of such bills. No provision is 
made for the representation of the district in Congress, and 
the inhabitants take no part in presidential elections.^ One 
half the expense of conducting the government of the dis¬ 
trict is defrayed out of the national treasury, and the other 
half is raised from taxation on private property in the dis¬ 
trict. 

The judicial establishment of the district consists of a 
court of appeals of three judges, a supreme court of six 
judges, and the usual police courts and courts of justices 
of the peace. 


References.— Beard, American Government and Politics, ch. xxi. 
Bryce, The American Commonwealth (abridged edition), ch. xlvi. 
Hart, Actual Government, ch. xx. Willoughby, Territories and 
Dependencies of the United States, chs. hi, iv, vi. 

Research Questions 

1. From what clause or clauses in the Constitution is the power to 
acquire foreign territory derived? 

2. By what different methods has foreign territory been added to 
the United States? 

3. Are there any limitations on the powers of Congress,in legislat¬ 
ing for the territories? 

1 This is also true of the other territories and dependencies. The 
organized territories, however, are allowed to send delegates to the 
national convention for the nomination of the President and Vice 
President. 


382 GOVERNMENT OF THE TERRITORIES, ETC. 

4. What is the reason for denying the right of local self-government 
to the people of the territories? 

5. Do you think the territories ought to be allowed representation 
in Congress? 

6. Should the status of United States citizenship be conferred on 
the inhabitants of Porto Rico? on the inhabitants of the Philippines? 

7. Does free trade exist between the United States and the insular 
possessions? 

8. Would it be wise to allow the inhabitants of Porto Rico and 
the Philippines to choose both houses of their legislative assemblies? 

9. Why are Americans given a majority of the positions on the 
executive council of Porto Rico? 

10. Why are the inhabitants of the territories not allowed to take 
part in presidential elections? 

11. Do you think it would be an improvement to provide a mayor 
and council for the District of Columbia? 


CHAPTER XX 


CITIZENSHIP 

Who are Citizens.—The population of every country is 
composed of two classes of persons: citizens and aliens. The 
larger portion of the inhabitants are citizens, but the alien 
class is considerable in some states of the Union, much 
more so than formerly, owing to the large influx of immi¬ 
grants from Europe in recent years.^ A citizen is one 
who has been admitted to full membership in the state, 
though he may not have been given full political privileges, 
such as the privileges of voting and holding public office. 
There is a large class of citizens in every state who can 
neither vote nor hold public office, such, for example, as 
women, minors, sometimes illiterate persons, those who have 
not paid their taxes, those who have been convicted of seri¬ 
ous crimes, and others. On the other hand, aliens in some 
states are allowed to vote and hold office, especially if 
they have formally declared their intention of becoming 
citizens. The terms “citizen” and “voter,” therefore, 
are not identical, since there are some citizens who can¬ 
not vote and some voters who are not citizens. 

How Citizenship is Acquired.—Under the Fourteenth 
Amendment to the federal Constitution, all persons born 

1 The census of New York of 1905 showed that of a total popula¬ 
tion of 8,000,000 inhabitants there were more than 1,000,000 aliens. 

383 


384 CITIZENSHIP 

in the United States ^ are citizens of the United States, and 
also of the states in which they reside. Persons who come 
here from abroad may become citizens only by being 
naturalized. 

Naturalization Law .—To acquire citizenship in this way, 
they must reside here for a period of five years, they must 
also be persons of good moral character, attached to the 
principles of the Constitution and well disposed to the good 
order and happiness of the same. Under the law of 1906 
they must also be able to write their own language and be 
able to read and speak English. Two steps are necessary 
in the procedure of naturalization: first the applicant must 
go before a federal court or a court of record in some state 
and make oath that he is at least eighteen years of age, and 
that it is his intention to become a citizen of the United 
States. At the same time he must renounce all allegiance 
to the foreign state of which he is a citizen or subject and 
must furnish the court with a variety of information con¬ 
cerning his past life, including the date of his arrival in the 
United States and the name of the ship on which he arrived. 
He is then furnished with a certificate which is popularly 
known as his “first papers.'” When he has resided in the 
United States at least five years and possesses all the nec¬ 
essary qualifications the court will issue him a certificate 
of naturalization which makes him a citizen. Fees amount¬ 
ing to five dollars are now charged for filing the petition 

* For some purposes, the residences of foreign diplomatic represent¬ 
atives are considered as if belonging to the foreign country repre¬ 
sented. Thus a child of the French ambassador, if born in the am¬ 
bassador’s residence at Washington, is born a citizen of France; 
likewise a child of the United States ambassador at Paris, if born 
at his residence in France, is nevertheless a natural-born citizen of 
the United States. 


HOW CITIZENSHIP IS ACQUIRED 385 

and issuing the final certificate. In order to prevent the 
wholesale naturalization of aliens in the large cities for elec¬ 
tion purposes, the law provides that no certificate of natu¬ 
ralization shall be granted within thirty days prior to any 
general election. Any honorably discharged alien from the 
United States army may be admitted to citizenship after 
a residence of one year, and the preliminary declaration of 
intention is not required of aliens who have served five years 
in the navy. 

Disqualifications .—In addition to the qualifications men¬ 
tioned above, there are certain disqualifications which serve 
to debar many foreigners from acquiring American citizen¬ 
ship. Thus only white persons and persons of African 
nativity are capable of being naturalized under our laws, so 
that those belonging to the Mongolian or other races, such 
as Chinese, Japanese, Burmese, and East Indians, cannot 
become citizens of the United States unless born here. 
Other persons excluded for different reasons are polyga¬ 
mists, anarchists, and certain other classes of criminals who 
are not considered worthy to enjoy the high privileges of 
citizenship. 

The naturalization of a husband makes the wife and 
minor children citizens, so that they do not have to go 
through the process of taking out their ‘‘papers.” 

Other Methods of Acquiring Citizenship .—Citizenship may 
be acquired sometimes in other ways than, the method de¬ 
scribed above. Thus a foreign woman becomes a citizen by 
marriage to an American citizen, and the inhabitants of 
foreign territory annexed to the United States become citi¬ 
zens by virtue of their incorporation into the body pohtic. 
In this way the inhabitants of the Louisiana territory, ac¬ 
quired from France, became citizens. In the same way 
those of Florida, Texas, California, Alaska, and Hawaii be- 
Govt. U. S.—25 


386 CITIZENSHIP 

came citizens, but not those of Porto Rico and the Philip¬ 
pines, 

How Citizenship may be Lost.—As citizenship may be 
acquired in various ways so it may be lost by different 
acts. 

Thus an American woman loses her citizenship by mar¬ 
riage to an alien. Acceptance of a commission in the service 
of a foreign country, if it involves the taking of an oath of 
allegiance to a foreign government, operates to divest one of 
his American citizenship. The most common mode by 
which citizenship is lost, however, is through voluntary 
removal from the country and naturalization in a foreign 
state. The right of the citizen to withdraw from the United 
States, renounce his allegiance, and acquire the citizenship 
of a foreign state, is declared by our law to be an inalien¬ 
able right. Mere removal from the United States and the 
establishment of a residence in a foreign country, however, 
does not of itself operate to divest one of his citizenship. 
An American citizen may reside abroad many years for the 
purposes of business, education, or pleasure, and so long as 
he preserves an intention of returning to the United States 
he is not held to have abandoned his American nationality. 

In order to prevent foreigners from coming to the United 
States, acquiring our citizenship, and returning to their na¬ 
tive country for the purpose of living there without being 
subject to the burdens and obligations of military service, 
the law declares that a naturalized American who returns 
to his native country and resides there for a period of two 
years will be presumed to have abandoned his American 
citizenship, and unless he can show an intention of returning 
to America he will be considered as no longer being a 
citizen. 

Federal versus State Citizenship.—In a country hav- 


FEDERAL VERSUS STATE CITIZENSHIP 387 

ing the federal form of government, the inhabitants have a 
dual citizenship, that is, they are citizens of the country as 
a whole and of the particular state in which they are resi¬ 
dents. Thus our federal Constitution declares that all per¬ 
sons born or naturalized in the United States and subject 
to the jurisdiction thereof are citizens of the United States 
and of the state in which they reside. A person, however, 
may be a citizen of the United States without at the same 
time being a citizen of any state, as is the case with those 
inhabiting the territories, the District of Columbia, and 
other places not forming a part of any state. On the con¬ 
trary, it seems to be generally admitted that one may be a 
citizen of a state without necessarily being a citizen of the 
United States. Thus a state may give an alien full political 
and civil rights and declare him to be a citizen of the state 
before he has become a citizen of the United States. Some 
states have in effect done this. It follows, therefore, that 
federal and state citizenship are not necessarily identical 
and coexistent, since there may be a class of state citizens 
upon whom the United States has not conferred its own 
citizenship, and a class of United States citizens who are not 
citizens of any state. The citizenship of a particular state 
may be relinquished for that of another by removal from 
the former state and the establishment of a residence in the 
latter. No legal formality whatever is required to put off 
the one and take on the other. 

Interstate Rights of Citizens .—is a provision in the 
Constitution of the United States which declares that the 
citizens of each state shall enjoy all the privileges and im¬ 
munities of the citizens of the several states. The purpose 
of this provision is to prevent one state from discriminating 
against the citizens of other states in favor of its own citi¬ 
zens. Whatever rights and privileges it accords to its own 


CITIZENSHIP 


388 

citizens must be accorded equally to citizens of other states 
who may be within its borders or who may wish to carry on 
business therein. The states are also forbidden by the fed¬ 
eral Constitution to abridge the privileges and immunities of 
citizens of the United States, though the Constitution does 
not specify or indicate what these privileges and immunities 
are. They include, however, such privileges as the making 
and enforcing of contracts, of suing in the courts, of inherit¬ 
ing, holding, and conveying property, of receiving equal 
protection of the laws, and, in general, of enjoying every 
right or privilege to which the citizen is entitled under the 
Constitution and laws of the United States. 

Rights and Duties of Aliens.—Aliens, though in a polit¬ 
ical sense members of foreign states, are, nevertheless, fully 
subject to the jurisdiction of the state in which they are 
domiciled, and owe it a temporary allegiance. They are 
bound to obey the laws equally with citizens, and may be 
punished for violations of them equally with citizens. They 
must also share, to a certain extent, the public burdens, and 
may be required to serve in the militia or police (though 
not in the regular army) if the common defense and domes¬ 
tic safety require their services. 

Right of Protection .—It is now universally admitted that 
they are entitled to the protection of the government under 
which they are living so long as they are within its jurisdic¬ 
tion, but not when they go abroad. So far as the enjoy¬ 
ment of civil rights is concerned, the tendency is to treat 
them on a footing of equality with citizens. Both the fed¬ 
eral and the state courts are open to them on the same terms 
as to citizens, and if they suffer injuries in the course of riots 
and other disturbances, because of their foreign nationality, 
especially if the public authorities fail to use due diligence 
to prevent or punish attacks upon them, the United States 


RIGHTS AND DUTIES OF ALIENS 389 

government will indemnify them or their heirs for the in¬ 
juries sustained.^ 

Disabilities of Aliens .—Formerly aliens were subject to 
disabilities much more commonly than now. Under the 
common law, for example, they could not inherit land, but 
this disability has been abolished in most of the states, 
though some still make a distinction between residents and 
nonresident aliens in this respect, allowing the former class 
to take land by inheritance as well as by purchase but ex¬ 
cluding the latter class. Some states do not allow them to 
be employed on the public works, and a few subject them 
to other disabilities, but they are not important or numer¬ 
ous. With regard to political privileges, however, the dis¬ 
abilities of aliens are still generally maintained. 

Rights and Obligations of Citizens.—The chief priv¬ 
ilege of citizenship is that of protection by the government 
in all personal and property rights. If the citizen goes 
abroad for the purpose of business or pleasure, the govern¬ 
ment will protect him from wrongful treatment so long as 
he obeys the law of the country to which he is, for the time 
being, subject, and demeans himself peaceably. If he is 
injured or discriminated against because of his foreign na¬ 
tionality, and the government of the country where he is 
sojourning fails to take proper measures to protect him, it 
will be required to make a suitable indemnity for the injury 
or make reparation of some kind. 

Equality of Native and Naturalized Citizens .—When it 

1 The United States government has uniformly refused to admit 
such liability but it has in practice generally allowed such indemnity. 
This was done, for example, in the case of the Anti-Spanish riots in 
New Orleans and Key West in 1851; in the case of the Anti-Chinese 
riots at Rock Springs, Wyoming, in 1885; and in the case of the 
Italian lynchings at New Orleans in 1891. 


390 


CITIZENSHIP 


comes to protecting its citizens abroad, the United States 
government makes no distinction between naturalized and 
native-born citizens. In the case of a Russian, for example, 
who comes to America and is naturalized and goes back to 
Russia for business or pleasure, our government will insist 
that he be treated by the Russian authorities as though he 
were a native-born American citizen. At home a natural¬ 
ized citizen enjoys the same privileges as a native-born ex¬ 
cept that he is not eligible to the office of President or Vice 
President of the United States. In all other respects he is 
on a footing of absolute equality with natural-born citi¬ 
zens. 

Duties and Obligations of Citizens .—Rights and privileges 
seldom exist without corresponding duties and obligations, 
and so citizenship has its duties. One of these is to contrib¬ 
ute to the bearing of the burdens of the state. This in¬ 
cludes the payment of taxes, service in the militia or army 
for purposes of defense, and the discharge of such public 
trusts as may be imposed. It is, of course, the duty of the 
citizen, as it is of every one who lives in the state, to obey 
the laws and do what he can to secure their enforcement. 
Finally, if the citizen possesses political privileges, it is his 
duty to take an active part in securing the election of com¬ 
petent and honest officials to the end that the government 
which protects him may be efficient and well administered. 

References.— Ashley, The American Federal State, ch. xxix; also 
pp. 212-217. Beard, American Government and Politics, pp. 160- 
163. Fuller, Government by the People, ch. ii. Garner, Intro¬ 
duction to Political Science, ch. xi. Hart, Actual Government, chs. 
ii-iv. Hinsdale, The American Government, ch. liv. 

Documentary and Illustrative Material.—i. Copy of the federal 
citizenship law of 1907. 2. Copy of the naturalization act of 1906. 
3. Copies of naturalization blanks and of naturalization regulations 
(these may be secured from the bureau of immigration and naturali- 


RESEARCH QUESTIONS 


39 ^ 

zation). 4. Copy of an application for a passport (this may be se¬ 
cured from the department of state). 5. Copy of a passport. 

Research Questions 

1. What is a citizen? Distinguish between native-born and nat¬ 
uralized citizens; between citizens and electors; between citizens and 
subjects. 

2. Is the citizenship of a child determined by the law of the place 
where it is born or by the law of the place of which the parents are 
citizens? Distinguish between the English and American practice 
in this respect, on the one hand, and the continental European prac¬ 
tice on the other. 

3. What would be the citizenship of a child born in the United 
States if the father were the ambassador of a foreign country, tem¬ 
porarily residing here? What would be the citizenship of a child 
born of American parents on the high seas? of a child born abroad 
of American parents? of a child born in the United States if the 
father were a foreign consul here? 

4. A child born in the United States of French parents would be a 
citizen of the United States under our law; it would also be a citizen 
of France, according to French law. Which citizenship would prevail? 

5. Suppose a citizen of the United States should renounce his alle¬ 
giance to the United States, remove to a foreign country and neglect 
to become naturalized therein. Would he be a citizen of any country? 

6. Do you think our law should admit persons of African descent 
to become citizens and yet deny the right to Japanese, Chinese, 
and natives of India? 

7. May a person be a citizen of two different countries at the same 
time? 

8. What would be the status of an American woman who lost her 
American citizenship by marrying a foreigner, in case of the death 
of her husband? How could she reacquire her original citizenship? 

9. How long may an American reside abroad without losing his 
citizenship? 

10. Many Europeans, in order to escape military service in their 
country, have emigrated to America, acquired our citizenship and 
returned to their native country. Will the United States government 
protect such persons against impressment into the military service? 


392 


CITIZENSHIP 


11. Will our government protect one of its citizens who while 
abroad violates the laws of the country where he is for the time resid¬ 
ing? 

12. Suppose a citizen of New York- moves to Pennsylvania and 
establishes a residence there. Does that act without any legal for¬ 
mality make him a citizen of Pennsylvania? 

13. May one state require a higher license fee for hunters or fisher¬ 
men from other states than it requires of its own citizens engaged in 
such a business? 


AETIOLES OF CONPEDEEATION 


Articles of Confederation and Perpetual Union between the 
States of New Hampshire, Massachusetts Bay, Rhode Island 
AND Providence Plantations, Connecticut, New York, New 
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia 

Article I.—The style of this confederacy shall be, “The United 
States of America.” 

Art. II.—Each State retains its sovereignty, freedom, and independ¬ 
ence, and every power, jurisdiction, and right which is not by this con¬ 
federation expressly delegated to the United States in Congress assembled. 

, Art. III.—The said States hereby severally enter into a firm league of 
friendship with each other, for their common defense, the security of their 
liberties, and their mutual and general welfare, binding themselves to 
assist each other against all force offered to, or attacks made upon them, 
or any of them, on account of religion, sovereignty, trade, or any other 
pretense whatever. 

Art. IV.—The better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States in this Union, the 
free inliabitants of each of these States, paupers, vagabonds, and fugitives 
from justice excepted, shall be entitled to all privileges and immunities of 
free citizens in the several States ; and the people of each State shall 
have free ingress and regress to and from any other State, and shall enjoy 
therein all the privileges of trade and commerce, subject to the same 
duties, impositions, and restrictions, as the inhabitants thereof respec¬ 
tively; provided that such restrictions shall not extend so far as to prevent 
the removal of property imported into any State, to any other State of 
which tile owner is an inhabitant ; provided, also, that no imposition, 
duties, or restriction, shall be laid by any State on the property of the 
United States or either of them. 

If any person guilty of, or charged with, treason, felony, or other high 
misdemeanor in any State, shall llee from justice, and be found in any of 
the United States, he shall, upon demand of the governor or executive 
power of the State from which he fled, be delivered up, and removed to 
the State having jurisdiction of his offense. 

Full faith and credit shall be given, in each of these States, to the 
records, acts, and judicial proceedings of the courts and magistrates of 
every other State. 

Art. V.—For the more convenient management of the general inter¬ 
ests of the United States, delegates shall be annually appointed in such 

393 



394 


ARTICLES OF CONFEDERATION 


manner as the legislature of each State shall direct, to meet in Congress 
on the first Monday in November, in every year, with a power reserved to 
each State to recall its delegates, or any of them, at any time within the 
year, and to send others in their stead for the remainder of the year. 

No State shall be represented in Congress by less than two, nor by 
more than seven members ; and no person shall be capable of being a del¬ 
egate for more than three years, in any term of six years ; nor shall any 
person, being a delegate, be capable of holding any office under the 
United States, for which he, or another for his benefit, receives any salary, 
fees, or emolument of any kind. 

Each State shall maintain its own delegates in any meeting of the 
States and while they act as members of the committee of the States. 

In determining questions in the United States in Congress assembled, 
each State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached or 
questioned in any court or place out of Congress ; and the members of 
Congress shall be protected in their persons from arrests and imprison¬ 
ments during the time of their going to and from, and attendance on 
Congress, except for treason, felony, or breach of the peace. 

Art. VI.—No State, without the consent of the United States, in 
Congress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance, or treaty, with 
any king, prince, or state ; nor shall any person holding any office of 
profit or trust under the United States, or any of them, accept of any pres¬ 
ent, emolument, office, or title of any kind whatever, from any king, 
prince, or foreign state ; nor shall the United States, in Congress assem¬ 
bled, or any of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confederation, or 
alliance whatever between tliem, without the consent of the United 
States, in Congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No States shall lay any imposts or duties which may interfere with 
any stipulations in treaties entered into by the United States, in Congress 
assembled, with any king, prince, or state, in pursuance of any treaties 
already proposed by Congress to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace, by any State, except 
such number only as shall be deemed necessary, by the United States in 
Congress assembled, for the defense of such State or its trade; nor shall 
any body of forces be kept up, by any State, in time of peace, except such 
number only as, in the judgment of the United States, in Con'gress as¬ 
sembled, shall be deeme'd requisite to garrison the forts necessary for the 
defense of such State; but every State shall always keep up a well regu¬ 
lated and disciplined militia, sufficiently armed and accoutred, and shall 
provide and constantly have ready for use, in public stores, a due number 
of field-pieces and tents, and a proper quantity of arms, ammunition, and 
camp equipage. 

No State shall engage in any war without the consent of the United 
States, in Congress assembled, unless such State be actually invaded by- 
enemies, or shall have received certain advice of a resolution being 
formed by some nation of Indians to invade such State, and the danger 
is so imminent as not to admit of a delay till the United States, in Congress 
assembled, can be consulted; nor shall any State grant commissions to 


ARTICLES OF CONFEDERATION 


395 


any ships or vessels of war, nor letters of marque or reprisal, except it be 
after a declaration of war by the United States, in Congress assembled, 
and then only against the kingdom or state, and the subjects thereof 
against which war has been so declared, and under such regulations as 
shall be established by the United States, in Congress assembled, unless 
such State be infested by pirates, in which case vessels of war may be fit¬ 
ted out for that occasion, and kept so long as the danger shall continue, or 
until the United States, in Congress assembled, shall determine otherwise. 

Art. VII.—When land forces are raised by any State for the common 
defense, all officers of or under the rank of colonel, shall be appointed by 
the legislature of each State respectively by whom such forces shall be 
raised, or in such manner as such State shall direct, and all vacancies 
shall be filled up by the State which first made the appointment. 

Art. VIII. — All charges of war, and all other expenses that shall be 
incurred for the common defense or general welfare, and allowed by the 
United States in Congress assembled, shall be defrayed out of a common 
treasury, which shall be supplied by the several States, in proportion to 
the value of all land within each State, granted to, or surveyed for, any 
person, as such land and the buildings and improvements thereon shall be 
estimated according to such mode as the United States, in Congress assem¬ 
bled, shall, from time to time, direct and appoint. The taxes for paying 
that proportion shall be laid and levied by the authority and direction of 
the legislatures of the several States, within the time agreed upon by the 
United States, in Congress assembled. 

Art. IX.—The United States, in Congress assembled, shall have the 
sole and exclusive right and power of determining on peace and war, ex¬ 
cept in the cases mentioned in the sixth Article; of sending and receiving 
ambassadors; entering into treaties and alliances, provided that no treaty 
of commerce shall be made whereby the legislative power of the re¬ 
spective States shall be restrained from imposing such imposts and duties 
on foreigners, as their own people are subjected to, or from prohibiting the 
exportation or importation of any species of goods or commodities what¬ 
soever; of establishing rules for deciding, in all cases, what captures on 
land or water shall be legal, and in what manner prizes taken by land or 
naval forces in the service of the United States, shall be divided or appro¬ 
priated ; of granting letters of marque and reprisal in times of peace; 
appointing courts for the trial of piracies and felonies committed on the 
high seas; and establishing courts for receiving and determining finally 
appeals in all cases of captures; provided that no member of Congress 
shall be appointed a judge of any of the said courts. 

The United States, in Congress assembled, shall also be the last resort 
on appeal, in all disputes and differences now subsisting, or that hereafter 
may arise between two or more States concerning boundary, jurisdiction, 
or any other cause whatever; which authority shall always be exercised 
in the manner following : Whenever the legislative or executive authority, 
or lawful agent of any State in controversy with another, shall present a 
petition to Congress, stating the matter in question, and praying for a 
hearing, notice thereof shall be given by order of Congress, to the legisla¬ 
tive or executive authority of the other State in controversy, and a day 
assigned for the appearance of the parties by their lawful agents, who 
shall then be directed to appoint, by joint consent, commissioners or 
judges to constitute a court for hearing and determining the matter in 


396 


ARTICLES OF CONFEDERATION 


question; but if they can not agree, Congress shall name three persons 
out of each of the United States, and from the list of such persons each 
party shall alternately strike out one, the petitioners beginning, until 
the number shall be reduced to thirteen; and from that number not less 
than seven nor more than nine names, as Congress shall direct, shall, in 
the presence of Congress, be drawn out by lot; and the persons whose 
names shall be so drawn, or any five of them, shall be commissioners or 
judges, to hear and finally determine the controversy, so always as a major 
part of the judges, Avho shall hear the cause, shall agree in the determina¬ 
tion; and if either party shall neglect to attend at the day appointed, 
without showing reasons which Congress shall judge sufficient, or being 
present, shall refuse to strike, the Congress shall proceed to nominate 
three persons out of each State, and the secretary of Congress shall strike 
in behalf of such party absent or refusing; and the judgment and sen¬ 
tence of the court, to be appointed in tlie manner before prescribed, shall 
be final and conclusive; and if any of the parties shall refuse to submit 
to the authority of such court, or to appear or defend their claim or 
cause, the court shall nevertheless proceed to pronounce sentence or judg¬ 
ment, which shall in like manner be final and decisive; the judgment or 
sentence and other proceedings being in either case transmitted to Con¬ 
gress, and lodged among the acts of Congress for the security of the 
parties concerned; provided, that every commissioner, before he sits in 
judgment, shall take an oath, to be administered by one of the judges of 
the supreme or superior court of the State where the cause shall be tried, 

well and truly to hear and determine the matter in question, according 
to the best of his judgment, without favor, affection, or hope of reward.” 
Provided, also, that no State shall be deprived of territory for the benefit 
of the United States. 

All controversies concerning the private right of soil claimed under 
different grants of two or more States, whose jurisdictions, as they may 
respect such lands, and the States which passed such grants are adjusted, 
the said grants or either of them being at the same time claimed to have 
originated antecedent to such settlement of jurisdiction, shall, on the peti¬ 
tion of either party to the Congress of the United States, be finally deter¬ 
mined, as near as may be, in the same manner as is before prescribed for 
deciding disputes respecting territorial jurisdiction between different 
States. 

The United States, in Congress assembled, shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin struck 
by their own authorityor by that of the respective States ; fixing the 
standard of weights and measures throughout the United States ; regulat¬ 
ing the trade and managing all affairs with the Indians not members of 
any of the States ; provided that the legislative right of any State, within 
its own limits, be not infringed or violated; establishing and regulating 
post offices from one State to another throughout all the United States, 
and exacting such postage on the papers passing through the same, as 
may be requisite to defray the expenses of the said office ; appointing all 
officers of the land forces in the service of the United States, excepting 
regimental officers ; appointing all the officers of the naval forces, and 
commissioning all officers whatever in the service of the United States; 
making rules for the government and regulation of the said land and 
naval forces, and directing their operations. 


ARTICLES OF CONFEDERATION 


397 


The United States, in Congress assembled, shall have authority to ap¬ 
point a committee, to sit in the recess of Congress, to be denominated 
“A Committee of the States,” and to consist of one delegate from each 
State; and to appoint such other committees and civil officers as may be 
necesspy for managing the general affairs of the United States under 
their direction ; to appoint one of their number to preside, provided that 
no person be allowed to serve in the office of president more than one 
year in any term of three years ; to ascertain the necessary sums of 
money to be raised for the service of the United States, and to appropriate 
and apply the same for defraying the public expenses ; to borrow money 
or emit bills on the credit of the United States, transmitting every half 
year to the respective States an account of the sums of money so bor¬ 
rowed or emitted ; to build and equip a navy ; to agree upon the number 
of land forces, and to make requisitions from each State for its quota, in 
proportion to the number of white inhabitants in such State, which requisi¬ 
tion shall be binding ; and thereupon the Legislature of each State shall 
appoint the regimental officers, raise the men, and clothe, arm, and equip 
them in a soldier-like manner at the expense of the United States; and 
the officers and men so clothed, armed, and equipped shall march to the 
place appointed, and within the time agreed on by the United States, in 
Congress assembled ; but if the United States, in Congress assembled, 
shall, on consideration of circumstances, judge proper that any State 
should not raise men, or should raise a smaller number than its quota, and 
that any other State should raise a greater number of men than the quota 
thereof, such extra number shall be raised, officered, clothed, armed, and 
equipped in the same manner as the quota of such State, unless the Leg¬ 
islature of such State shall judge that such extra number can not be 
safely spared out of the same, in which case they shall raise, officer, 
clothe, arm, and equip as many of such extra number as they judge can 
be safely spared, and the officers and men so clothed, armed, and equipped 
shall march to the place appointed, and within the time agreed on by the 
United States, in Congress assembled. 

The United States, in Congress assembled, shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter into 
any treatise or alliances, nor coin money, nor regulate the value thereof, 
nor ascertain the sums and expenses necessary for the defense and welfare 
of the United States, or any of them, nor emit bills, nor borrow money 
on the credit of the United States, nor appropriate money, nor agree upon 
the number of vessels of war to be built or purchased, or the number of 
land or see forces to be raised, nor appoint a commander-in-chief of the 
army or navy, unless nine States assent to the same, nor shall a question 
on any other point, except for adjourning from day to day, be determined, 
unless by the votes of a majority of the United States, in Congress assem¬ 
bled. 

The Congress of the United States shall have power to adjourn to any 
time within the year, and to any place within the United States, so that 
no period of adjournment be for a longer duration than the space of six 
months, and shall publish the journal of their proceedings monthly, ex¬ 
cept such parts thereof relating to treaties, alliances, or military opera¬ 
tions as in their judgment require secrecy; and the yeas and nays of the 
delegates of each State, on any question, shall be entered on the journal 
when it is desired by any delegate; and the delegates of a State, or any of 


398 


ARTICLES OF CONFEDERATION 


them, at his or their request, shall be furnished with a transcript of the 
said journal, except such parts as are above excepted, to lay before the 
legislatures of the several States. 

Art. X.—The committee of the States, or any nine of them, shall be 
authorized to execute, in the recess of Congress, such of the powers of 
Congress as the United States, in Congress assembled, by the consent of 
nine States, sliall, from time to time, think expedient to vest them with; 
provided that no power be delegated to the said committee, for the exer¬ 
cise of which, by the articles of confederation, the voice of nine States, 
in the Congress of the United States assembled, is requisite. 

Art. XI.—Canada acceding to this confederation, and joining in the 
measures of the United States, shall be admitted into, and entitled to all 
the advantages of this Union; but no other colony shall be admitted into 
the same unless such admission be agreed to by nine States. 

Art. XII.—All bills of credit emitted, moneys borrowed, and debts 
contracted by or under the authority of Congress, before the assembling 
of the United States, in pursuance of the present confederation, shall be 
deemed and considered as a charge against the United States, for pay¬ 
ment and satisfaction whereof the said United States and the public faith 
are hereby solemnly pledged. 

Art. XIII.—Every State shall abide by the determinations of the United 
States, in Congress assembled, on all questions which by this Confedera¬ 
tion are submitted to them. And the Articles of this Confederation shall 
be inviolably observed by every State, and the Union sliall be perpetual; 
nor shall any alteration at any time hereafter be made in any of them, 
unless such alteration be agreed to in a Congress of the United States, 
and be afterward confirmed by the legislatures of every State. 

And whereas it hath pleased the great Governor of the world to incline 
the hearts of the legislatures we respectively represent in Congress, to 
approve of. and to authorize us to ratify the said Articles of Confedera¬ 
tion and perpetual Union, Know ye, that we, the undersigned delegates, 
by virtue of the power and authority to us given for that purpose, do, by 
these presents, in the name and in behalf of our respective constituents, 
fully and entirely ratify and confirm each and every of the said Articles of 
Confederation and perpetual Union, and all and singular the matters and 
things therein contained. And we do further solemnly plight and engage 
the faith of our respective constituents, that they shall abide by the deter¬ 
minations of the United States, in Congress assembled, on all questions 
which by the said Confederation are submitted to them; and that the 
Articles thereof shall be inviolably observed by the States we respectively 
represent, and that the Union shall be perpetual. In witness whereof, we 
have hereunto set our hands in Congress. Done at riiiladelphia, in the 
State of Pennsylvania, the ninth day of July, in the year of our Lord 
1778,* and in the third year of the Independence of America. 

* Only ten States took action upon the Articles at this time. New Jersey, Delaware, 
and Maryland did not ratify them until later. 


CONSTITUTION OF THE UNITED STATES —1787i 


We the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquillity, provide for the com¬ 
mon defense, promote the general welfare, and secure the blessings of 
liberty to ourselves and our posterity, do ordain and establish this Con¬ 
stitution for the United States of America. 

ARTICLE I 

Section 1. All legislative powers herein granted shall be vested in 
a Congress of the United States, which shall consist of a Senate and 
House of Representatives. 

Section 2. 1 The House of Representatives shall be composed of 

members chosen every second year by the people of the several States, 
and the electors in each State shall have the qualifications requisite for 
electors of the most numerous branch of the State legislature. 

2 No person shall be a representative who shall not have attained to 
the age of twenty-five years, and been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that State in 
which he shall be chosen. 

3 Representatives and direct taxes shall be apportioned among the 
several States which may be included within this Union, according to 
their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to service for a term 
of years, and excluding Indians not taxed, three fifths of all other per¬ 
sons.^ The actual enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and within every 
subsequent term of ten years, in such manner as they shall by law direct. 
The number of representatives shall not exceed one for every thirty 
thousand, but each State shall have at least one representative ; and until 
such enumeration shall be made, the State of New Hampshire shall be 
entitled to choose three, Massachusetts eight, Rhode Island and Provi¬ 
dence Plantations one, Connecticut five. New York six. New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North 
Carolina five. South Carolina five, and Georgia three. 

4 When vacancies happen in the representation from any State, the 
executive authority thereof shall issue writs of election to fill such 
vacancies. 

5 The House of Representatives shall choose their speaker and other 
officers, and shall have the sole power of impeachment. 

Section 3. 1 The Senate of the United States shall be composed of 

two senators from each State, chosen by the legislature thereof for six 
years ; and each senator shall have one vote. 

1 This reprint of the Constitution exactly follows the text of that in the 
Department of State at Washington, save in the spelling of a few words. 

The last half of th.is sentence was superseded by the 13th and 14th Amend¬ 
ments. 


399 



400 


CONSTITUTION OF THE UNITED STATES 


2 Immediately after they shall be assembled in consequence of the 
first election, they shall be divided as equally as may be into three 
classes. The seats of the senators of the first class shall be vacated at 
the expiration of the second year, of the second class at the expiration of 
the fourth year, and of the third class at the expiration of the sixth year, 
so that one third may be chosen every second year; and if vacancies 
happen by resignation, or otherwise, during the recess of the legislature 
of any State, the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill such 
vacancies. 

3 No person shall be a senator who shall not have attained to the age 
of thirty years, and been nine years a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that State for which he 
shall be chosen. 

4 The Vice President of the United States shall be President of the 
Senate, but shall have no vote, unless they be equally divided. 

5 The Senate shall choose their other officers, and also a president pro 
tempore^ in the absence of the Vice President, or when he shall exercise 
the office of President of the United States. 

6 The Senate shall haye the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath or affirmation. 
When the President of the United States is tried, the chief justice shall 
preside: and no person shall be convicted without the concurrence of two 
thirds of the members present. 

7 Judgment in cases' of impeachment shall not extend further than to 
removal from office, and disqualification to hold and enjoy any office of 
honor, trust or profit under the United States: but the party convicted 
shall nevertheless be liable and subject to indictment, trial, judgment and 
punishment, according to law. 

Section 4. 1 The times, places, and manner of holding elections for 

senators and representatives, shall be prescribed in each State by the 
legislature thereof; but the Congress may at any time by law make or 
alter such regulations, except as to the places of choosing senators. 

2 The Congress shall assemble at least once in every year, and such 
meeting shall be on the first Monday in December, unless they shall by 
law appoint a different day. 

Section 5. 1 Each House shall be the judge of the elections, returns 

and qualifications of its own members, and a majority of each shall con¬ 
stitute a quorum to do business ; but a smaller number may adjourn from 
day to day, and may be authorized to compel the attendance of absent 
members, in such manner, and under such penalties as each House may 
provide. 

2 Each House may determine the rules of its proceedings, punish its 
members for disorderly behavior, and, with the concurrence of two thirds, 
expel a member. 

3 Each House shall keep a journal of its proceedings, and from time 
to time publish the same, excepting such parts as may in their judgment 
require secrecy; and the yeas and nays of the members of either House 
on any question shall, at the desire of one fifth of those present, be 
entered on the journal. 

4 Neither House, during the session of Congress, shall, without the 
consent of the oilier, adjourn for more than three days, nor to any other 
place than that m wliich ihe two Houses shall be sitting. 


401 


CONSTITUTION OF THE UNITED STATES 

Section 8. 1 The senators and representatives shall receive a com¬ 
pensation for their services, to be ascertained by law, and paid out of the 
Treasury of the United States. They shall in all cases, except treason, 
felony and breach of the peace, be privileged from arrest during their 
attendance at the session of their respective Houses, and in going to and 
returning from the same ; and for any speech or debate in either House, 
they shall not be questioned in any other place. 

2 No senator or representative shall, during the time for which he 
was elected, be appointed to any civil office under the authority of the 
United States, which shall have been created, or the emoluments whereof 
shall have been increased during such time ; and no person holding any 
office under the United States shall be a member of either House during 
his continuance in office. 

Section 7. 1 All bills for raising revenue shall originate in the 

House of Representatives ; but the Senate may propose or concur with 
amendments as on other bills. 

2 Every bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a law, be presented to the President 
of the United States; if he approve he shall sign it, but if not he shall 
return it, with his objections to that House in which it shall have origi¬ 
nated, who shall enter the objections at large on their journal, and proceed 
to reconsider it. If after such reconsideration two thirds of that House 
shall agree to pass the bill, it shall be sent, together with the objections, 
to the other House, by which it shall likewise be reconsidered, and if 
approved by two thirds of that House, it shall become a law. But in all 
such cases the votes of both Houses shall be determined by yeas and nays, 
and the names of the persons voting for and against the bill shall be en¬ 
tered on the journal of each House respectively. If any bill shall not be 
returned by the President within ten days (Sundays excepted) after it 
shall have been presented to him, the same shall be a law, in like manner 
as if he had signed it, unless the Congress by their adjournment prevent 
its return, in which case it shall not be a law. 

3 Every order, resolution, or vote to which the concurrence of the 
Senate and House of Representatives may be necessary (except on a ques¬ 
tion of adjournment) shall be presented to the President of the United 
States; and before the same shall take effect, shall be approved by him, 
or being disapproved by him, shall be repassed by two thirds of the Senate 
and House of Representatives, according to the rules and limitations pre¬ 
scribed in the case of a bill. 

Section 8. 1 The Congress shall have power to lay and collect 

taxes, duties, imposts and excises, to pay the debts and provide for the 
common defense and general welfare of the United States ; but all duties, 
imposts and excises shall be uniform throughout the United States; 

2 To borrow money on the credit of the United States; 

3 To regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes ; 

4 To establish an uniform rule of naturalization, and uniform laws on 
the subject of bankruptcies throughout the United States; 

6 To coin money, regulate the value thereof, and of foreign coin, and 
fix the standard of weights and measures ; 

6 To provide for the punishment of counterfeiting the securities and 
current coin of the United States ; 

7 To establish post offices and post roads ; 


402 


CONSTITUTION OF THE UNITED STATES 


8 To promote the progress of science and useful arts by securing for 
limited times to authors and inventors the exclusive right to their respec¬ 
tive writings and discoveries; 

9 To constitute tribunals inferior to the Supreme Court; 

10 To define and punish piracies and felonies committed on the high 
seas, and offenses against the law of nations; 

11 To declare war, grant letters of marque and reprisal, and make 
rules concerning captures on land and water ; 

12 To raise and support armies, but no appropriation of money to that 
use shall be for a longer term than two years; 

13 To provide and maintain a navy ; 

14 To make rules for the government and regulation of the land and 
naval forces; 

16 To provide for calling forth the militia to execute the laws of the 
Union, suppress insurrections and repel invasions; 

16 To provide for organizing, arming, and disciplining the militia, and 
for governing such part of them as may be employed iu the service of the 
United States, reserving to the States respectively the appointment of the 
officers, and the authority of training the militia according to the disci¬ 
pline prescribed by Congress; 

17 To exercise exclusive legislation in all cases whatsoever, over such 
district (not exceeding ten miles square) as may, by cession of particular 
States and the acceptance of Congress, become the seat of the government 
of the United States,^ and to exercise like authority over all places pur¬ 
chased by the consent of the legislature of the State in which the same 
shall be, for the erection of forts, magazines, arsenals, dockyards, and 
other needful buildings ; and 

18 To make all laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers vested by this 
Constitution in the government of the United States, or in any department 
or officer thereof. 

Section 9. 1 The migration or importation of such persons as any 
of the States now existing shall think proper to admit, shall not be pro¬ 
hibited by the Congress prior to the year one thousand eight hundred and 
eight, but a tax or duty may be imposed on such importation, not exceed¬ 
ing ten dollars for each person. 2 

2 The privilege of the writ of habeas corpus shall not be suspended, 
unless when in cases of rebellion or invasion the public safety may re¬ 
quire it. 

3 No bill of attainder or ex post facto law shall be passed. 

4 No capitation, or other direct, tax shall be laid, unless in proportion 
to the census or enumeration hereinbefore directed to be taken. 

5 No tax or duty shall be laid on articles exported from any State. 

6 No preference shall be given by any regulation of commerce or reve¬ 
nue to the ports of one State over those of another: ncr shall vessels 
bound to, or from, one State be obliged to enter, clear, or pay duties in 
another. 

7 No money shall be drawn from the treasury, but in consequence of 
appropriations made by law ; and a regular statement and account of the 

1 The District of Columbia, which comes under these regulations, had not 
then been erected. 

2 A temporary clause, no longer in force. See also Article V. 


CONSTITUTION OF THE UNITED STATES 


403 

receipts and expenditures of all public money shall be published from time 
to time. 

8 No title of nobility shall be granted by the United States: and no 
person holding any office of profit or trust under them, shall, without the 
consent of the Congress, accept of any present, emolument, office, or title, 
of any kind whatever, from any king, prince, or foreign State. 

Section 10.^ 1 No State shall enter into any treaty, alliance, or con¬ 
federation ; grant letters of marque and reprisal; coin money ; emit bills 
of credit; make anything but gold and silver coin a tender in payment of 
debts ; pass any bill of attainder, ex post facto law, or law impairing the 
obligation of contracts, or grant any title of nobility. 

2 No State shall, without the consent of the Congress, lay any imposts 
or duties on imports or exports, except what may be absolutely necessary 
for executing its inspection laws: and the net produce of all duties and 
imposts laid by any State on imports or exports, shall be for the use of 
the treasury of the United States ; and all such laws shall be subject to 
the revision and control of the Congress. 

3 No State shall, without the consent of Congress, lay any duty of 
tonnage, keep troops, or ships of war in time of peace, enter into any 
agreement or compact with another State, or with a foreign power, or 
engage in war, unless actually invaded, or in such imminent danger as 
will not admit of delay. 

ARTICLE II 

Section 1. 1 The executive power shall be vested in a President of 

the United States of America. He shall hold his office during the term of 
four years, and, together with the Vice President, chosen for the same 
term, be elected, as follows 

2 Each State shalh appoint, in such manner as the legislature thereof 
may direct, a number of electors, equal to the whole number of senators 
and representatives to which the State may be entitled in the Congress: 
but no senator or representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector. 

The electors shall meet in their respective States, and vote by ballot 
for two persons, of whom one at least shall not be an inhabitant of the 
same State with themselves. And they shall make a list of all the per¬ 
sons voted for, and of the number of votes for each ; which list they shall 
sign and certify, and transmit sealed to the seat of the government of the 
United States, directed to the president of the Senate. The president of the 
Senate, shall, in the presence of the Senate and House of Representatives, 
open all the certificates, and the votes shall then be counted. The person 
having the greatest number of votes shall be the President, if such number 
be a majority of the whole number of electors appointed ; and if there be 
more than one who have such majority, and have an equal number of 
votes, then the House of Representatives shall immediately choose by 
ballot one of them for President; and if no person have a majority, then 
from the five highest on the list the said house shall in like manner choose 
the President. But in choosing the President, the votes shall be taken 
by States, the representation from each State having one vote ; a quorum 
for this purpose shall consist of a member or members from two thirds of 
the States, and a majority of all the States shall be necessary to a choice. 

1 See also the 10th, 13th, 14th, and 15th Amendments. 


404 


CONSTITUTION OF THE UNITED STATES 


/ 


In every case, after the choice of the President, the person having the 
greatest number of votes of the electors shall be the Vice President. But 
if there should remain two or more who have equal votes, the Senate 
shall choose from them by ballot the Vice PresideiiL.i 

3 The Congress may determine the time of choosing the electors, and 
the day on which they shall give their votes; which day shall be the same 
throughout the United States. 

4 No person except a natural born citizen, or a citizen of the United 
States, at the time of the adoption of this Constitution, shall be eligible to 
the office of President; neither shall any person be eligible to that office 
who shall not have attained to the age of thirty-five years, and been four¬ 
teen years a resident within the United States, 

5 In case of the removal of the President from office, or of his death, 
resignation, or inability to discharge the powers and duties of the said 
office, the same shall devolve on the Vice President, and the Congress 
may by law provide for the case of removal, death, resignation, or ina¬ 
bility, both of the President and Vice I’resident, declaring what officer 
shall then act as President, and such officer shall act accordingly, until 
the disability be removed, or a President shall be elected. 

6 The President shall, at stated times, receive for his services a com¬ 
pensation, which shall neither be increased nor diminished during the 
period for which he shall have been elected, and he shall not receive 
within that period any other emolument from the United States, or any 
of them. 

7 Before he enter on the execution of his office, he shall take the fol¬ 
lowing oath or affirmation: — “I do solemnly swear (or affirm) that I 
will faithfully execute the office of President of the United States, and 
will to the best of my ability, preserve, protect and defend the Constitu¬ 
tion of the United States.” 

Section 2. 1 The President shall be commander in chief of the 

array and navy of the United States, and of the militia of the several 
States, when called into the actual service of the United States; he may 
require the opinion, in writing, of the principal officer in each of the 
executive departments, upon any subject relating to the duties of their 
respective offices, and he shall have power to grant reprieves and pardons 
for offenses against the United States, except in cases of impeachment. 

2 He shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two thirds of the senators present con¬ 
cur; and he shall nominate, and by and with the advice and consent of 
the Senate, shall appoint ambassadors, other public ministers and consuls, 
judges of the Supreme Court, and all other officers of the United States, 
whose appointments are not herein otherwise provided for, and which 
shall be established by law: but the Congress may by law vest the 
appointment of such inferior officers, as they think proper, in the Presi¬ 
dent alone, in the courts of law, or in the heads of departments. 

3 The President shall have power to fill up all vacancies that may 
happen during the recess of the Senate, by granting commissions which 
shall expire at the end of their next session. 

Section 3. He shall from time to time give to the Congress infor¬ 
mation of the state of the Union, and recommend to their consideration 
such measures as he shall judge necessary and expedient; he may, on 

1 This paragraph superseded by the 12th Amendment. 


CONSTITUTION OF THE UNITED STATES 


405 


extraordinary occasions, convene both Houses, or either of them, and in 
case of disagreement between them with respect to the time of adjourn¬ 
ment, he may adjourn them to such time as he shall think proper; he 
shall receive ambassadors and other public ministers ; he shall take care 
that the laws be faithfully executed, and shall commission all the officers 
of the United States. 

Section 4. The President, Vice President, and all civil officers of the 
United States, shall be removed from office on impeachment for, and con¬ 
viction of, treason, bribery, or other high crimes and misdemeanors. 

ARTICLE III 

Section 1. The judicial power of the United States shall be vested 
in one Supreme Court, and in such inferior courts as the Congress may 
from time to time ordain and establish. The judges, both of the Supreme 
and inferior courts, shall hold their offices during good behavior, and 
shall, at stated times, receive for their services, a compensation which 
shall not be diminished during their continuance in office. 

Section 2. 1 The judicial power shall extend to all cases, in law and 

equity, arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their authority ; — to 
all cases affecting ambassadors, other public ministers and consuls; — 
to all cases of admiralty and maritime jurisdiction ; — to controversies to 
which the United States shall be a party ; —to controversies between two 
or more States ; — between a State and citizens of another State; ^ — be¬ 
tween citizens of different States, — between citizens of the same State 
claiming lands under grants of different States, and between a ‘State, or 
the citizens thereof, and foreign States, citizens or subjects. 

2 In all cases affecting ambassadors, other public ministers and con¬ 
suls, and those in which a State shall be party, the Supreme Court shall 
have original jurisdiction. In all the other cases before mentioned, the 
Supreme Court shall have appellate jurisdiction, both as to law and fact, 
with such exceptions, and under such regulations as the Congress shall 
make. 

3 The trial of all crimes, except in cases of impeachment, shall be by 
jury ; and such trial shall be held in the State where the said crimes shall 
have been committed; but when not committed within any State, the 
trial shall be at such place or places as the Congress may by law have 
directed. 

Section 3. 1 Treason against the United States, shall consist only in 

levying war against them, or in adhering to their enemies, giving them 
aid and comfort. No person shall be convicted of treason unless on the 
testimony of two witnesses to the same overt act, or on confession in 
open court. 

2 The Congress shall have power to declare the punishment of treason, 
but no attainder of treason shall work corruption of blood, or forfeiture 
except during the life of the person attainted. 

ARTICLE IV 

Section 1. Full faith and credit shall be given in each State to the 
public, acts, records, and judicial proceedings of every other State. And 

1 See the 11th Amendment. 


4o6 


CONSTITUTION OF THE UNITED STATES 


the Congress may by general laws prescribe the manner in which such 
acts, records and proceedings shall be proved, and the effect thereof. 

Section 2. 1 The citizens of each State shall be entitled to all privi¬ 

leges and immunities of citizens in the several States. 

2 A person charged in any State with treason, felony, or other crime, 
who shall flee from justice, and be found in another State, shall on de¬ 
mand of the executive authority of the State from which he fled, be 
delivered up to be removed to the State having jurisdiction of the crime. 

3 No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or regu¬ 
lation therein, be discharged from such service or labor, but shall be 
delivered up on claim of the party to whom such service or labor may 
be due.i 

Section 3. 1 New States may be admitted by the Congress into this 

Union ; but no new State shall be formed or erected within the jurisdic¬ 
tion of any other State ; nor any State be formed by the junction of two 
or more States, or parts of States, without the consent of the legislatures 
of the States concerned as well as of the Congress. 

2 The Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property belonging 
to the United States; and nothing in this Constitution shall be so con¬ 
strued as to prejudice any claims of the United States, or of any particular 
State. 

Section 4. The United States shall guarantee to every State in this 
Union a republican form of government, and shall protect each of them 
against invasion; and on application of the legislature, or of the execu¬ 
tive (when the legislature cannot be convened) against domestic violence. 

ARTICLE V 

The Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose amendments to this Constitution, or, on the 
application of the legislatures of two thirds of the several States, shall 
call a convention for proposing amendments, ■which, in either case, shall 
be valid to all intents and purposes, as part of this Constitution, when 
ratified by the legislatures of three fourths of the several States, or by 
conventions in three fourths thereof, as the one or the other mode of 
ratification may be proposed by the Congress ; Provided that no amend¬ 
ment which may be made prior to the year one thousand eight hundred 
and eight shall in any manner affect the first and fourth clauses in the 
ninth section of the fipst article ; and that no State, without its consent, 
shall be deprived of its equal suffrage in the Senate. 

ARTICLE VI 

1 All debts contracted and engagements entered into, before the 
adoption of this Constitution, shall be as valid against the United States 
under this Constitution, as under the Confederation. 

2 This Constitution, and the laws of the United States which shall be 
made in pursuance thereof ; and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme law of the 
land ; and the judges in every State shall be bound thereby, anything in 
the Constitution or laws of any State to the contrary notwithstanding. 

1 See the 13th Amendment. 


CONSTITUTION OF THE UNITED STATES 


407 


3 The senators and representatives before mentioned, and the mem¬ 
bers of the several State legislatures, and all executive and judicial officers, 
both of the United States, and of the several States, shall be bound by 
oath or affirmation to support this Constitution ; but no religious test 
shall ever be required as a qualification to any office or public trust under 
the United States. 

ARTICLE VII 

The ratification of the conventions of nine States shall be sufficient for 
the establishment of this Constitution between the States so ratifying the 
same. 

Done in Convention by the unanimous consent of the States present the 
seventeenth day of September in the year of our Lord one thousand 
seven hundred and eighty-seven, and of the independence of the United 
States of America the twelfth. In witness whereof we have hereunto 
subscribed our names. 

Go: Washington — 

Presidt. and Deputy from Virginia 


New Hampshire 

John Langdon 
Nicholas Gilman 

Massachusetts 

Nathaniel Gorham 
Rufus King 

Connecticut 

Wm. Sami. Johnson 
Roger Sherman 

New York 
Alexander Hamilton 

New Jersey 

Wil: Livingsto 
David Brearley 
Wm. Paterson 
Jona: Dayton 

Peniisylvania 

B. Franklin 
Thomas Mifflin 
Robt. Morris 
Geo. Clymer 
Thos. Fitzsimons 
Jared Ingersoll 
James Wilson 
Gouv Morris 

Attest 


Delaware 
Geo: Read 

Gunning Bedford Jun 
John Dickinson 
Richard Bassett 
Jaco: Broom 

Maryland 

James McHenry 
Dan of St. Thos Jenifer 
Danl. Carroll 

Virginia 

John Blair — 

James Madison Jr. 

North Carolina 

Wm. Blount 
Richd. Dobbs Spaight 
Hu Williamson 

South Carolina 
J. Rutledge, 

Charles Cotesworth Pinckney 
Charles Pinckney 
Pierce Butler. 

Georgia 

William Few 
Abr Baldwin 

William Jackson Secretary. 


4o8 


CONSTITUTION OF THE UNITED STATES 


Articles in addition to, and amendment of, the Constitution of the United 

States of America, proposed hy Congress, and ratified by the legisla¬ 
tures of the several States pursuant to the fifth article of the original 

Constitution. 

ARTICLE 11 

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof ; or abridging the freedom of speech, 
or of the press ; or the right of the people peaceably to assemble, and to 
petition the government for a redress of grievances. 

ARTICLE II 

A well regulated militia, being necessary to the security of a free State, 
the right of the people to keep and bear arms, shall not be infringed. 

ARTICLE III 

No soldier shall, in time of peace be quartered in any house, without 
the consent of the owner, nor in time of war, but in a manner to be pre¬ 
scribed by law. 

ARTICLE IV 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be vio¬ 
lated, and no warrants shall issue, but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

ARTICLE V 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, except in 
cases arising in the land or naval forces, or in the militia, when in actual 
service in time of war or public danger ; nor shall any person be subject 
for the same offense to be twice put in jeopardy of life or limb ; nor shall 
be compelled in any criminal case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process of law; nor shall 
private property be taken for public use without just compensation. 

ARTICLE VI 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature and 
cause of the accusation ; to be confronted with the witnesses against him; 
to have compulsory process for obtaining witnesses in his faVor, and to 
have the assistance of counsel for his defense. 

ARTICLE VII 

In suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no fact 
tried by a jury shall be otherwise reexamined in any court of the United 
States, than according to the rules of the common law. 

1 The first ten Amendments were adopted in 1791. 


CONSTITUTION OF THE UNITED STATES 


409 


ARTICLE VIII 

Excessive bail shall not be required, nor excessive fines imposed, ner 
cruel and unusual punishments inflicted. 


ARTICLE IX 

The enumeration in the Constitution of certain rights shall not be 
construed to deny or disparage others retained by the people. 

ARTICLE X 

The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or to 
the people. 

^ ^ ARTICLE XII 

The judicial power of the United States shall not be construed to extend 
to any suit in law or equity, commenced or prosecuted against one of the 
United States by citizens of another State, or by citizens or subjects of 
any foreign state. ARTICLE XII 2 


The electors shall meet in their respective States, and vote by ballot 
for President and Vice President, one of whom, at least, shall not be an 
inhabitant of the same State with themselves ; they shall name in their 
ballots the person voted for as President, and in distinct ballots the person 
voted for as Vice President, and they shall make distinct lists of all per¬ 
sons voted for as President and of all persons voted for as Vice President, 
and of the number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of the government of the United 
States, directed to the president of the Senate;—The president of the 
Senate shall, in the presence of the Senate and House of Representatives, 
open all the certificates and the votes shall then be counted; —The person 
having the greatest number of votes for President shall be the President, 
if such number be a majority of the whole number of electors appointed ; 
and if no person have such majority, then from the persons having the ^ 
highest numbers not exceeding three on the list of those voted for as ' 
President^ the House of Representatives shall choose immediately, by 
ballot, the President. But in choosing the President, the votes shall be 
taken by States, the representation from each State having one vote; a 
quorum for this purpose shall consist of a member or members from two 
thirds of the States, and a majority of all the States shall be necessary 
to a choice. And if the House of Representatives shall not choose a 
President whenever the right of choice shall devolve upon them, before 
the fourth day of March next following, then the Vice President shall act 
as President, as in the case of the death or other constitutional disability 
of the President. The person having the greatest number of votes as 
Vice President shall be the Vice President, if such number be a majority 
of the whole number of electors appointed, and if no person have a 
majority, then from the two highest numbers on the list, the Senate shall 
choose the Vice President; a quorum for the purpose shall consist of two 
thirds of the whole number of senators, and a majority of the whole 
number shall be necessary to a choice. But no person constitutionally 
ineligible to the ofifice of President shall be eligible to that of Vice Presi¬ 
dent of the United States. 

1 Adopted in 1798. 


2 Adopted in 1804. 


410 


CONSTITUTION OF THE UNITED STATES 


ARTICLE XIII1 

Section 1. Neither slavery nor involuntary servitude, except as a pun¬ 
ishment for crime whereof the party shall have been duly convicted, shall 
exist within the United States, or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by ap¬ 
propriate legislation. 

ARTICLE XIV 2 

Section 1. All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States and of 
the State wherein they reside. No Stats shall make or enforce any law 
which shall abridge the privileges or immunities of citizens of the United 
States ; nor shall any State deprive any person of life, liberty, or property, 
without due process of law ; nor deny to any person within its jurisdic¬ 
tion the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the several 
States according to their respective numbers, counting the whole nuinber 
of persons in each State, excluding Indians not taxed. But when the right 
to vote at any election for the choice of electors for President and Vice 
President of the United States, representatives in Congress, the executive 
and judicial officers of a State, or the members of the legislature thereof, 
is denied to any of the male inhabitants of such State, being twenty-one 
years of age, and citizens of the United States, or in any way abridged, 
except for participation in rebellion, or other crime, the basis of representa¬ 
tion therein shall be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citizens twenty-one 
years of age in such State. 

Section 3. No person shall be a senator or representative in Congress, 
or elector of President and Vice President, or hold any office, civil or mili¬ 
tary, under the United States, or under any State, who, having previously 
taken an oath, as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an executive or judi¬ 
cial officer of any State, to support the Constitution of the United States, 
shall have engaged in insurrection or rebellion against the same, or given 
aid or comfort to the enemies thereof. But Congress may by a vote of 
two thirds of each House, remove such disability. 

Section 4. The validity of the public debt of the United States, author¬ 
ized by law, including debts incurred for payment of pensions and leounties 
for services in suppressing insurrection or rebellion, shall not be questioned. 
But neither the United States nor any State shall assume or pay any debt 
or obligation incurred- in aid of insurrection or rebellion against the 
United States, or any claim for the loss or emancipation of any slave; 
but all such debts, obligations and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 

ARTICLE XV 3 

Section 1. The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any State on account 
of race, color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this article by 
appropriate legislation. 

1 Adopted in 1305. 2 Adopted in 1868, s Adopted in 1870. 


INDEX 


Adams, John, as President, 314. 

Administrative courts in Europe, 364, n. 

Ad valorem duties, 218. 

Agriculture, Department of, 345-346. 

Alaska, acquisition, 378. 
government, 378-379. 

Aliens, disabilities of, 389. 
rights and duties of, 388. 

See also Citizenship. 

Ambassadors of American government, 327. 

Amendments of national constitution, 
fourth, 366. 
fifth, 365. 
sixth, 365. 
eighth, 366. 
eleventh, 355. 
twelfth, 280. 

fourteenth, 383-384, 176. 
fifteenth, 127, 176. 

Amnesty, 320. 

Animal Husbandry, Bureau of, 345. 

Annapolis, Convention, 164. 
naval academy at, 268. 

Annexation, citizenship through, 385. 

Anti-Federalists, 170, 171. 

Appointment, fourth class postmasters, 
302, n. 

president’s power of, 301. 

Apportionment, in state legislatures, 76, 77. 
of federal representatives, 175. 

Appraisal of customs duties, 221. 

Appropriations, federal, 225, 
preparation of bills, 225. 

Army, distribution of, 263, n. 
expenditures for, 264. 
general staff, 262. 
militia, 265-266. 
power of Congress over, 262. 
present strength, 263. 
ranks of officers, 268. 
salaries of officers, 264. 
volunteers, 264. 
war department, 333-336. 

Arsenals, United States, location of, 335. 

Articles of Confederation, 393. 
adoption of. 159-160. 
attempts to amend, 163,164. 
defects of, 161-164. 
government under, 160-161. 

Attorney-General, of United States, 338. 

Australian ballot, 135 . 


Bail, 119. 

Ballot, Australian, 135. 
evolution of, 134. 
forms of, 135-137. 
reform of, 137-139. 

Bankruptcy, hearing of petitions, 270. 
legislation by Congress, 269-270. 
power of Congress, 269. 
state legislation, 269. 

Banks, national, 232, 332. 
postal savings, 254. 

Bill of Rights, in state constitutions, 68-69. 

Bills, in state legislatures, 82-84. 
in Congress, 204-205. 

Bonds, United States, 226-227. 

Bribery, 84-85, 140-142. 
in senatorial elections, 183. 

Bryan, William J., candidate for President, 
291. 

Cabinet, appointment of members, 325. 
composition of, 324. 
origin and nature of, 324. 
responsibility of, 325. 
salary of members, 325. 

Census, Bureau of, 347. 

Centralized government, 5. 

Charters, city, 31-33. 

method of granting, 31-32. 

Chemistry, Bureau of, 346. 

Chicago, budget of, in 1909, 41. 
police force, 44. 

China, U. S. court in, 363. 

Chinese, exclusion of, 239. 

ineligibility to citizenship, 385. 

Cities, charters, 31-33. 
finances, 41-44. 
growth of, 26-29. 

legislative interference in affairs of cities, 

33-34. 

officers of, 35-41. 
position in state, 30. 
state control of, 30-31. 

Citizens, treatment of by states, 63-64. 

Citizenship, acquisition of, 383, 385. 
bureau of, 330. 
definition of, 383. 
disqualifications, 385. 
double citizenship, 386-387. 
duties and obligations, 390. 
interstate rights of citizens, 387, 


411 




412 


INDEX 


Citizenship {continued), 
loss of, 386. 
rights of citizens, 389. 

City council, 35-38. 

Civil cases, trial of in state courts, 115-118. 
Civil service reform, in national government, 
306. 

effect of competitive system, 309. 
examinations, 308. 
exempt positions, 308. 
extent of classified service, 307. 
in diplomatic and consular service, 327- 
329 - 

law of 1883, 306. 
law of 1907, 309, n. 

Civil service reform, in state government, 
105-106. 

Claims, Court of, 363. 

Cleveland, Grover, as President, 227, 275. 

extension of civil service by, 307. 

Coast and Geodetic Survey, 350. 

Commerce, anti-trust legislation, 244-245. 
federal regulation, 168-169. 
interstate, 240. 

Interstate Commerce Commission, 242. 
power to regulate, 236. 
pure food legislation, 246. 
regulation of foreign commerce by Con¬ 
gress, 236-240. 

regulation of railway traffic, 242-244. 
Commerce and Labor, Department of, 346- 
351- 

Commerce Court, 364. 

Commissary General of Subsistence, 334. 
Commission, Interstate Commerce, 242. 
Commission plan of city government, 51-53. 
Committees, in Congress, 201-204, 206. 
conference, 212. 
committee on rules, 208, 210. 
committee of the whole, 207. 
forms of action in, 205. 
hearings, 205. 
reference of bills to, 204. 

Committees, in state legislatures, 81. 
Committees, party, 148-150, 289-290. 
Commutation, 321. , 

Comptroller of the Currency, 332. 
Concurrent resolutions, 319. 

Congress, action on bills, 204-213. 
adjournment by President, 316. 
committees, 201-212. 
compensation of members, 188-189. 
control over election of members, 187. 
extra sessions, 315. 
open sessions, 200. 
organization, 197-199. 
powers, 248-272. 
implied powers, 270-272. 
powers under Articles, 160, 162-164. 
private bills, 204, 208. 
public bills, 204, n. 


Congress {continued). 
quorum, 199. 

representation in, 166-167. 
rights and privileges of members, 189- 
190. 

rules of procedure, 206-215. 
seating of members, 200. 
sessions of, 175. 
suspension of rules, 208. 

Constitution, federal, compromises, 166- 
169. 

construction of, 270-271. 
making of, 165-169. 
opposition to, 169-170. 
prohibition on governments, 59. 
ratification of, 169-172. 

Constitution, state, amendment of, 70. 
bill of rights, 68-69. 
contents of, 67-68. 
framing of, 64-65. 
length, 67. 
ratification, 65-66. 

Constitutional Convention, 1787, com¬ 
promises of, 166-169. 
personnel, 165. 
work of, 166. 

Consular Service, Bureau of, 329. 
consular courts, 329, n. 
duties of consuls, 329. 
recent reforms, 329. 

Continental Congress, 159. 

Convention, national political, committees 
in, 287. 

nomination of candidates, 288. 
organization of, 287. 
platform, 288. 

Conventions, state, 153-157. 

Copyrights, 258-259. 

Corporations, Bureau of, 350. 

Corrupt practices, acts regulating, 140- 
142. 

Council, city, 35-38. 
mode of election, 36-37. 
powers, 37. 

See also Cities. 

County, government of, 14-20. 
officers, 16-20. 
population and area, 14. 

County-township systerr of local govern¬ 
ment, 21-23 

Courts, federal, 353-367. 

Courts, state, 109-123. 
function of, 109. 
grades of state, 109-111. 
municipal courts, 50-51. 
qualifications of judges 112-113. 
trials, 115-123. 

Criminal cases, trial of in state courts, 118— 
123. 

Customs Appeals, U. S. Court of, 363. 
Customs duties, collection of, 220. 




INDEX 


Debt, national, 225. 

growth of, 227. 

Dependencies, 378-381. 

Diplomatic service. Bureau of, 326-327. 
Direct legislation, 85-89. 

Direct primary, 157. 

District of Columbia, courts in, 364. 

government of, 380-381. 

Division of powers, 58-59. 

Education, Bureau of, 344-345. 

Elections, ballots, 135-139. 
fraudulent voting, 140-142. 
manner of holding, 133, 139. 
registration for, 131. 
suffrage,i25-129. 
time of holding, 132. 

Electoral college, 276, 277. 

method of voting in, 279-281. 

Electoral Count Law, 283. 

Embargo Act, 237. 

Enabling Act, 65. 

Engraving and Printing, Bureau of, 333. 
E.xecutive. See President and Governor. 
Executive Council, proposed in constitutional 
convention, 274. 

Executive department, state government, 
91-106. 

organization, 92. 

Expenditures, national, growth of, 225. 
Federalists, 170. 

Fee system, in consular service, 330. 
Fifteenth Amendment, 127, 176. 
filibustering, 207, 214. 

Finance. See Taxation. 

Fire protection in cities, 47-48. 

Fisheries, Bureau of, 349. 

Foreign Relations. See State Department. 
Forestry, Bureau of, 346. 

Fourteenth Amendment, 176, 383-384. 
Franchises, of municipal public utilities. 
48-50. 

power of city council to grant, 37-38. 
Franking, privilege of, 189. 

Fugitives from justice, surrender of by 
states, 63. 

Galveston, municipal government in, 51-52. 
Garfield, James A., assassination, 294, 306. 
General Staff, of War Department, 334. 
Geological Survey, the, 334. 

Gerrymander, 77, 177. 

Governor, election and qualification, 91. 
powers, 96-9^' 
salary, 92. 
term, 91. 

Grand jury, 119. 

Grant, U. S., candidate for third term, 276, n. 
Greenbacks, 228, 231. 

Guam, 379. 


413 

Habeas Corpus, power of governor to sus¬ 
pend, lOI. 

power of President to suspend, 312. 
Hamilton, Alexander, 275, n. 

construction of constitution, 271. 
Hawaiian Islands, 372. 

Hayes, R. B., disputed election of, 282. 
Health protection in cities, 46-47. 

Henry, Patrick, opposition to Constitution, 
171. 

Home rule charters for cities, 32. 

House of Representatives, national, 174- 
178. 

election of president, 283. 
procedure, 207-213. 
rules of, 207. 

See also Congress. 

House of Representatives, state, 76. 

See also Legislature. 

Illinois, minority representation in, 78. 
Immigration, 238, w., 349. 

Immigration and Naturalization, Bureau 
of, 349. 

Impeachment, federal, 192. 

state, 100. 

Income taxes, 223. 

Inde.xes and Archives, Bureau of, 330. 

Indian affairs, allotment act, 342. 

Indian agents, 342. 

policy of government toward Indians, 342. 
schools for Indians, 342. 

Indictment, by grand jury, 120. 

Initiative and Referendum, 85-89. 

Insular Affairs, Bureau of, 335-336. 

Insular cases, 370. 

Insurgents, in Republican party, 210. 
Insurrection, power of President to suppress, 

313 

Interior, Department of, 339-345. 
International Postal Union, 257. 

Interstate commerce, 240. 

Interstate Commerce Commission, 242. 
Invasion, protection of states against, 313. 

Jackson, Andrew, as President, 304. 

Jefferson, Thomas, as President, 314 
as president of senate, 282, n. 
construction of Constitution, 271. 
election to presidency, 284. 
vote for President, 280. 

Johnson, Andrew, impeachment of, 293, 305. 

removal of officers, 304. 

Joint resolutions, 204, n., 319. 

Judges, of federal courts, 356 ff. 

of state courts, 112-115. 

Judicial control over President, 32T-322. 

over subordinate executive officers, 322. 
Judiciary, federal, 353-367. 
in organized territories, 373. 
state, 109-123. 







414 


INDEX 


Jurisdiction. See Courts. 

Justice, Department of, 338 - 339 - 

Labor, Bureau of, 346. 

Land offices, 341. 

Legislation, direct, 85-89. 

Legislature, in organized territories, 373. 
Legislature, state, compensation of members, 
79 - 

minority representation in, 77-78. 

organization, 80-82. 

passage of bill in, 82-84. 

powers of, 73, 74- 

sessions of, 78-79. 

structure, 75-77. 

Life-Saving Service, 333. 

Lighthouse Establishment, 350. 

Lincoln, Abraham, as President, 275 
popular vote for President, 279. 
powers exercised as President, 300. 
Lobbying, 84-85. 

Local government, conflict of systems in 
West, 21-22. 
importance of, 6-7. 
kinds, 5. 
merits, 6. 
types of, 7. 

Local option liquor laws, 87. 

Manufactures, Bureau of, 351. 

Marshall, Chief Justice, decision in Marbury 
V. Madison, 361. 

interpretation of Constitution, 271. 
Massachusetts, constitution of, 66. 

Mayor, the, 38-39. 

McKinley, Wm., as President, 275, «., 294. 
Merit system. See Civil Service Reform. 
Military Academy, the, 336. 

Military Secretary, the, 334. 

Militia, the, 265-266. 

Mines, Bureau of, 344. 

Minority representation in state legislature, 
77-78. 

Mint, Director of, 332. 

Mints, U. S., 228, n. 

Mississippi, ratification of constitution of, 66. 
Monetary system, 228-232. ' 

Morrill Act, 340. 

Municipal government, 25-50. 

Naturalization, 383-385. 

Nautical Almanac, publication of, 337. 
Naval Academy, U. S., 338. 

Navigation, Bureaus of, 337, 348. 

Navigation laws, 237. ■ 

Navy, the, 264-269. 

Navy Department, 336-338. 

Navy yards, location of, 337. 

New England town, the, 8. 

Newport, naval war college at, 268. 

New York type of local government, 21-22. 


New York city, budget of, 41. 

collections from customs duties in, 222. 
police force, 44. 

Nonintercourse Act of 1809, 237. 

Northern Securities case, 245. 

Ordinance of 1787, 371. 

Ordinances, power of President to issue, 316. 
Ordnance, Bureau of, 337. 

Oregon, election of U. S. senators in, 185. 

initiative and referendum in, 87, 88. 
Original package doctrine, 241. 

Pagopago, harbor of, 379. 

Panama Canal, construction of, 271, 335. 
Panama Canal Zone, 379-380. 

Parcels post, 255. 

Pardons, amnesty, 320. 
commutation, 321. 

extent of President’s power over, 320. 
parole, 321. 

power of governor to grant, 102, 103. 
Parole, 321. 

Parties. See Political Parties. 

Passports, 326. 

Patent Office, 344 
Patents, 259-261. 

Paymaster General, the, 335. 

Pennsylvania type of local government, 22. 
Pension Bureau, 343-344. 

Philippine Islands, 374-378. 

Plant Industry, Bureau of, 345. 

Platform of political parties, 155, 288. 

Police power, 241. 

Police protection in cities, 44-46. 

Political parties, conventions, 153-157, 287- 
288. 

local, 145. 

national, 145-148. 

nature and functions, 144. 

nomination of candidates, 153-157. 

organization, 148-150. 

platform, 155, 288. 

primaries of, 150-152. 

Porto Rico, 374-376. 

Ports of delivery, 220, n. 
Postmaster-General, the, 339. 

Post Office, the, classes, 257 
classification of mail matter, 247. 
development of postal service, 248. 

“fraud orders,” 249. 

free delivery, 252. 

international postal union, 257. 

mail matter, 249. 

money order service, 254. 

parcels post, 255. 

postal deficit, 249. 

postal savings banks, 254. 

postal subsidies, 256. 

rates of postage, 249. 

registry service, 253. 




INDEX 


Post Office {continued). 

second-class matter, 251. 

Post Office Department, 339. 

Powers, division of between state and 
national government, 58. 
of municipal corporations, 32. 

President, campaigns for election of, 291. 
choice of President by electors, 279- 
281. 

choosing of electors, 277-279. 
compensation, 299. 

contributions by corporations forbidden, 
292. 

counting of electoral vote, 281-283. 
creation of office, 274. 
election by House, 283-285. 
electoral and popular vote, 279. 
failure of electoral plan, 277. 
immunity from judicial control, 321. 
impeachment of, 322. 
inauguration, 298. 
mode of election, 276 
powers and duties, 300-320. 
publicity of campaign contributions, 292- 
293- 

qualifications, 275. 
raising funds for campaign, 291. 
succession to presidency, 293-295. 
term of office, 275. 

Previous question, the, 211. 

Primaries, 150-153. 

direct primary, 157. 

Privateer, 262. 

Probation, 123. 

Public Health and Marine Hospital Service. 
332. 

Public lands, disposal of, 340. 

Homestead Act, 341. 
land offices, 341. 

Morrill Act, 340. 

Preemption Act, 340. 
present extent of, 341. 

Public Opinion Law, in Illinois, 87. 

Public utilities, in municipalities, 48. 

government ownership of, 50. 

Pure food, legislation concerning, 240, 246. 

Quarantine, laws by Congress, 239. 
Quartermaster General, of War Department, 
334- 

Reciprocity treaties, 220. 

Reed, Thomas B., rule on quorum, 200. 
Referendum, 85-89. 

Registration for elections, 131. 

Removal, President’s power of, 303-309. 
Representatives, House of. See House, 
Congress, Legislature. 

Resolutions, 204, n. 

Revenue, sources of federal, 218. 

Revenue Cutter Service, 333. 


415 

Roosevelt, Theodore, as President, 224, 

275. »- 

extension of civil service by, 307. 

Samoan Islands, 379. 

Secret Service, the, 333. 

Senate, national, as executive council to 
President, 274. 

classification of senators, 180. 

debate in, 214. 

mode of election, 181-186. 

power to amend revenue measures, 219, n. 

president of, 213. 

procedure in, 213-215. 

right of legislature to instruct, 182. 

special functions of, 190-194. 

See Congress. 

Senate, state, 75. 

See Legislature. 

Sherman Anti-Trust Law, 245. 

Sherman treasury notes, 231. 

Slavery compromise in Constitution, 167- 
168. 

South Carolina, ratification of constitution, 
66 . 

Speaker, English, 209. 
of House of Representatives, powers, 203, 
209. 

Special legislation, constitutional protection 
against, 34. 

Specific duties, 218. 

Spoils system, 106, 304. 

elimination of in diplomatic service, 327. 
Standards, Bureau of, 350. 

State, obligations and duties, 62-64. 
place of in federal system, 57. 
powers of, 59, 60. 

prohibitions on in federal Constitution, 

_ SQ- _ 

rights and privileges, 60-62. 

State boards and commissions, 104-105. 
State, Department of, 325-330. 

Statistics, Bureau of, *348. 

Steamboat Inspection Service, 348. 

“Strike” bills, 85. 

Succession Law of 1792, 294. 
of 1886, 295. 

Suffrage, nature of elective franchise, 125. 
qualifications for voting, 125-129. 
woman suffrage, 128. 

Supervising Architect, 333. 

Surgeon General, 334. 

Taft, Wm. H., governor of Philippines, 
377- 

Tariff, maximum and minimum principle, 
219. 

preparation of bill, 219. 
protective, 218. 

Taxation, federal, collection of taxes, 222. 
collection of customs duties, 220. 





INDEX 


416 

Taxation {continued) 
corporation tax, 224. 
customs duties, 218. 
forms of federal taxes, 217. 
income taxes, 223. 
inheritance taxes, 224. 
internal revenue taxes, 221. 
national power of, 217. 
protective tariff, 218. 
reciprocity treaties, 2 20. 
tariff bills, 219. 

Taxation, Municipal, 42. 

Territories, courts in, 364. 

extension of Constitution to, 369. 
government of organized, 372-374. 
Northwest Territory, 371. 
origin of territorial system, 370. 
partly organized, 374-378. 
powers of Congress over, 369. 
representation of in Congress, 175, n. 
unorganized, 378-381. 

Territory, government of occupied, 312. 

Tobacco, tax on, 222. 

Tonnage laws, 237. 

Town meeting, the, 9-10. 

conditions unfavorable to, lo-ii. 

Town system of local government, 7, 13. 
officers of, 11-14. 
powers of, 8-9. 

Treason, punishment of, 366-367. 

Treasury, Department of, 331-332. 


Treaties, negotiation of, 310, 328. 

senate’s share in making, 310. 

Treaty, reciprocity, 220. 

Trials, in courts, 115-123. 

Tutuila, 379. 

United States funds, deposit of, 224. 

Veto, exercise of power by President, 212, 

213,317. 

importance of, 319. 
power of governor, 97-99. 
use of in practice, 318. 

Vice President, election by senate, 285. 
electoral vote for, 280. 
nomination of, 289. 
presiding officer of, 197. 

Village government, 53. ' 

Voting machines, 139. 

War, Department of, organization and 
functions, 333-336. 

Warrants, issued by secretary of state, 
326. 

Washington, George, as President, 275, 314, 
356. 

Weather Bureau, the, 345. 

West Point Military Academy, 336. 

Wilson, James, 275, n. 

Yards and Docks, Bureau of, 337. 




SUPPLEMENT: GOVERNMENT OF 
OHIO 

The Constitution of the State.—The first constitution of 
Ohio was framed by a convention of delegates which met at 
Chillicothe, November i, 1802. The deliberations of the 
convention lasted until November 29, when a constitution 
was adopted and submitted to Congress for approval and 
the state was formally admitted to the union February 19, 
1803. The constitution was not, however, submitted to 
the people. The document was comparatively brief, and 
served largely as a model for constitutions of several of the 
neighboring states admitted soon after. This constitution 
remained in force for forty-eight years, by which time it was 
apparent that some important changes should be made to 
meet new conditions. Accordingly the legislature submitted 
the question of holding another convention and the people 
gave their approval. Delegates were accordingly elected, 
and the convention which met in Cincinnati, March 10, 
1851, drafted the document which, with various amend¬ 
ments, remains to-day the fundamental law of the state.^ 
This instrument, unlike the former one, was submitted to 
the people and received their approval before going into 
effect. 

Several important governmental changes were introduced 
by the new constitution. The sessions of the legislature, 

1 A third constitutional convention was called by the General Assem¬ 
bly in 1872, but the document which they submitted was rejected by 
the people at the polls. See “Biographical Annals of Ohio,” 128. 

Copyright, 1911, by American Book Company. 

4 

€CI.A3o:{253 


w. P. I 


2 


SUPPLIOMENT 


which under the old constitution were held annually, were 
now made biennial, and the term of representatives was in¬ 
creased to two years. Much of the extensive appointing 
power of the legislature was taken away from that body, and 
officers and judges who, under the old constitution, had 
been chosen by it were to be elected by the people. The 
governor was given the power to appoint the trustees of 
benevolent and other state institutions, but his authority 
was not increased in any other respect. Judicial positions 
were made elective, while the number of judges of the su¬ 
preme court was increased from three to five. 

A mendmenis—The constitution of the state may be altered 
in one of two ways. Either a convention may be called for 
that purpose, or the legislature may propose amendments. 
The convention method is employed only when a general 
revision of the constitution is contemplated. The question 
of calling such a convention may be submitted by the legis¬ 
lature, two thirds of both houses concurring, at any election 
for members of that body, and ipust be submitted at regular 
intervals of 20 years beginning with 1871. If a majority of 
the electors voting at the election favor the proposition, the 
legislature proceeds to call a convention. It must be com¬ 
posed of as many members as are in the house of representa¬ 
tives, and chosen in the same manner as are members of that 
body. The convention then proceeds to make such revi¬ 
sions in the constitutions as it may deem wise, but all such 
alterations must in turn be submitted to the electors and 
receive the approval of a majority of the voters voting 
thereon. 

The method of amendment by legislative initiation is 
much simpler. Such amendments may be proposed in 
either house of the legislature and must receive a majority 
of at least three fifths of the members of each house. After 


GOVERNMENT OF OHIO 


3 


they have passed both houses they must be published in at 
least one newspaper in each county once a week for six 
months preceding the next election for members of the leg¬ 
islature, when they are referred to the people for adoption 
or rejection. Each amendment so submitted must receive 
a majority of votes cast at the election before it becomes 
effective. If more than one amendment is submitted at 
the same election they must all be voted on separately. 

The State Legislature. —The legislature is officially known 
as the General Assembly. Like the national Congress, it is 
composed of two houses, a senate and a house of representa¬ 
tives. The powers of the two houses are the same except 
that the house of representatives has the sole right of im¬ 
peachment, and to the senate belongs the sole right to try 
impeachment cases. The qualifications for membership in 
the two houses are the same, and differ but little from those 
required for voting. Members of both houses must be citi¬ 
zens of the United States, at least twenty-one years of age, 
and must have resided in the state and in the county or dis¬ 
trict from which they are chosen for one year next preceding 
the election. Federal officeholders as well as most state 
officials^ are disqualified from membership in either house, 
and so are persons convicted of embezzlement of public 
funds. The members of both houses are chosen directly by 
the people, and serve for terms of two years. They are 
elected at the general state election on the first Tuesday after 
the first Monday in November in the even-numbered 
years. 

In electing members of the lower house, counties con¬ 
stitute ‘‘representative districts,” each county having at 
least one representative. The ratio of representation is 

1 Township officers, justices of the peace, notaries public, and offi¬ 
cers of the militia are not included. 


4 


SUPPLEMENT 


fixed arbitrarily by dividing the entire population of the 
state by loo. In the Seventy-ninth General Assembly there 
were 119 members of the house. Senators are chosen from 
34 larger districts, each of which embraces two or three 
counties and sometimes as many as seven. The governor, 
state auditor, and secretary of state make a new apportion¬ 
ment every ten years, immediately after the taking of the 
federal census. The legislature fixes its own pay, and in do¬ 
ing so is subject to no constitutional restriction except that 
no change in its compensation can be made during its term 
of office. 

Legislative Sessions and Procedure.—Regular sessions of 
the legislature begin on the first Monday of January in the 
odd-numbered years. The constitution provides for bien¬ 
nial sessions, but places no limitation on their length. Be¬ 
fore 1895 regular sessions were held in the even-numbered 
years, and the requirement of biennial sessions was fre¬ 
quently evaded by holding an adjourned session each odd- 
numbered year. The governor is empowered to call extra 
sessions whenever in his judgment public necessity demands. 
This he must do by proclamation, and when the legislature 
assembles he must state to both houses the purpose for 
which they have been convened. 

The rules with regard to the organization of the two 
houses, privileges of members, the powers of each house over 
its rules of procedure, adjournments, discipline, publicity 
of proceedings, entering the yeas and nays on the the jour¬ 
nal, and similar matters are substantially the same as in 
other states and have already been described in a previous 
chapter. 

Bills may originate in either house. They must be read 
at large on three different days unless the house, by a three- 
fourths vote, dispenses with this rule, and must be printed 


GOVERNMENT OF OHIO 


5 


before the final vote is taken on their passage. An impor¬ 
tant constitutional requirement is that no bill shall embrace 
more than one subject, which shall be clearly expressed in its 
title, and that no act shall be revived or amended unless the 
new act contains the entire act revived or the portions 
amended. The purpose of this provision is to prevent the 
enactment in the same bill of legislation on unrelated mat¬ 
ters, to the contents of which the title gives no clew. In 
the absence of such a restriction, undesirable provisions 
would sometimes be smuggled into bills and passed without 
the knowledge of members who were not careful to read 
them through. 

For convenience in legislation each house is divided into 
committees upon one or more of which every member is 
placed. In the senate there were in 19ii thirty-eight such 
committees, all of which were elected by that body. In the 
house, the forty-five committees are appointed by the 
speaker. The size of the senate committees ranges from five 
to fifteen members while those of the house usually consist of 
from seven to nine members. Among the most important 
committees are those on the judiciary, finance, municipal 
affairs, county affairs, railroads and telegraphs, agricul¬ 
ture, universities and colleges, manufactures and commerce, 
taxation, mines and mining. 

The two houses meet for the purpose of organizing at ten 
o’clock A. M. on the first day of the regular session. The 
lieutenant governor is president of the senate. Until the 
house of representatives is organized it is presided over 
by the secretary of statek The presiding officer calls the 
roll, and each member responds by presenting his certificate 
of election certified by the proper county officer. The mem¬ 
bers then take the oath of office. After this is done each 
* If the secretary of state is absent, the state auditor presides. 


6 


SUPPLEMENT 


house proceeds to elect its officers. These consist, in the 
senate, of a president pro tempore, who presides in the ab¬ 
sence of the lieutenant governor, a chief clerk, and a num¬ 
ber of assistant clerks,^ and a sergeant-at-arms with five as¬ 
sistants. In the transaction of ordinary business a majority 
of each house constitutes a quorum. 

Lawmaking.—Either house may initiate proposed laws, 
but they may be amended or rejected by the other. The 
governor may suggest legislation, but the houses are not 
bound to follow his suggestions. Any member may intro¬ 
duce a measure, which is then sent to the clerk and is read by 
him to the house. The bill is then printed and usually re¬ 
ferred to the proper committee. The committee may report 
it back in its original form, or in an amended form. If the 
committee disapproves of the measure it may recommend 
that it be rejected. When the bill comes up for a third read¬ 
ing it is discussed and perhaps amended, after which a vote 
is taken. The vote on the final passage must be by yeas and 
nays, and must be entered on the journal in order that the 
people may know how their representatives have voted. 
Appropriation bills and apportionment bills are given 
preference. In case the vote is favorable the bill is sent to 
the other house and there goes through the same process. 
Should the second house amend the bill in any particular, 
it must be sent back to the house in which it originated 
for concurrence, and should they fail to agree, a conference 
committee of three members from each house is selected 
to effect a compromise. After a bill has been approved by 
both houses it is enrolled by the clerk of the house in which 
it originated and signed by the presiding officers of both 

^ The assistant clerks are known as assistant clerk, journal clerk, 
enrolling clerk, engrossing clerk, recording clerk, message clerk, and in 
the senate an index clerk. 


GOVERNMENT OF OHIO 


7 


houses. The enrolled copy is deposited with the secretary 
of state. ^ 

Legislative Powers—The powers of the state legislature, 
unlike those of Congress, are not enumerated in the consti¬ 
tution. It may, therefore, legislate upon any and all matters 
which do not fall within the jurisdiction of the national 
government or upon which it is not forbidden by the federal 
or state constitution to legislate. In some respects, how¬ 
ever, the power of the Ohio legislature is restricted by the 
state constitution. The bill of rights of that, document pro¬ 
hibits the conferring of hereditary honors or privileges. 
Other sections forbid laws inconsistent with public policy, 
such as retroactive laws, laws impairing the obligation of 
contracts, or laws creating a poll tax. The powers of the 
legislature are also restricted in two other very important 
respects. The first of these limitations relates to the enact¬ 
ment of special legislation on a variety of subjects, the ob¬ 
jections to which are discussed in a former chapter. The 
constitution declares that the General Assembly shall pass 
no special acts conferring corporate powers, but that all laws 
of such a nature must be general in their application. The 
other restriction deals with the powers of the legislature with 
regard to finances. The state can never contract any debt 
for purposes of internal improvement, nor any debt what¬ 
ever of more than $750,000 except in case of war, invasion, 
or insurrection. The legislature is furthermore forbidden 
to loan the credit of the state to an individual or association, 
or assume the debts of any county, city, town, or township, 
unless such debts are incurred to suppress insurrection, 
repel invasion, or defend the state in war. The purpose of 
these restrictions is to prevent the legislature from running 
^ The enacting clause of a bill reads “Be it enacted by the General 
Assembly of the State of Ohio.” 


8 


SUPPLEMENT 


the state into debt for extravagant purposes as was often 
done in the early days before such restrictions were made. 

The Veto Power.—Every bill passed by the legislature 
must be submitted to the governor for his approval, and if 
signed by him it becomes a law. If he disapproves of it he 
is required to return it with his objections to the house in 
which it originated. If both houses, two thirds of the mem¬ 
bers concurring, repass the bill, it becomes a law notwith¬ 
standing the disapproval of the governor. If he fails to 
return any bill submitted to him within ten days, exclusive 
of Sundays and the day the bill was presented to him, it shall 
become a law nevertheless, as if he had signed it, unless the 
General Assembly shall by its adjournment in the meantime 
prevent its return, in which case it shall be filed with the 
governor’s objections in the office of the secretary of state 
within the prescribed ten days, or become a law. 

In one respect the veto power of the governor differs from 
that of the President of the United States as well as from 
that of many other state executives. The constitution as 
amended in 1903 provides that the governor may not only 
veto a bill as a whole but any section or item of such a bill.^ 
When portions of a bill are disapproved they are sent back 
to the legislature and must be considered there as in the case 
of a whole bill. By this means the governor is able to pre¬ 
vent objectionable appropriations for a particular purpose, 
and at the same time to reduce the aggregate amount of 
such when, in his judgment, it exceeds the probable income. 

The Executive.—The constitution declares that the 
supreme executive power shall be vested in a governor, 
who shall take care that the laws be faithfully executed. 
He is elected by the people for a term of two years and is 
eligible to succeed himself. His term begins on the second 
^ Prior to 1903 the governor had no veto power whatever. 


GOVERNMENT OF OHIO 


9 


Monday of January following the election. Unlike the 
President of the United States he may hold his office until 
his successor is elected and qualified, and might therefore 
serve longer than two years in case his successor is unable 
to qualify. The votes are canvassed by the legislature 
in joint assembly, and in case of a disputed election that 
body determines who has been elected. In case of a tie the 
legislature itself makes a choice between the two receiving 
the equal number of votes. The governor must be a citizen 
of the United States, at least twenty-one years old when 
elected, and a resident of the state for the year preceding his 
election. His salary, which is fixed by law, is $10,000. 

The governor is required by the constitution to give the 
legislature, at the commencement of each session, informa¬ 
tion by message of the condition of the state and to rec¬ 
ommend such measures as he may deem expedient. He 
may, as has already been stated, convene the legislature in 
extraordinary session, and in case of disagreement between 
the two houses with respect to the time of adjournment, 
he may adjourn it to such a time as he thinks proper, pro¬ 
vided it is not beyond the first day of the next regular ses¬ 
sion. 

With the advice and consent of the senate he may appoint 
certain officers whose appointment or election is not other¬ 
wise provided for. Under the first constitution of the state 
the governor’s power of appointment was limited to filling 
the office of adjutant general. He also filled such offices as 
were appointed by the legislature when a vacancy occurred 
when that body was not in session. The constitution of 1851 
greatly abridged the appointing power of the legislature, and 
vested in the governor the power to appoint the trustees of 
benevolent and other state institutions. He also appoints 
a large number of administrative officers and boards directly 


lO 


SUPPLEMENT 


responsible to him, all of whom are subject to removal by 
him for cause. Most of the important offices are filled by 
election, though the appointing power of the governor is 
more extensive than is generally supposed. Some of the 
more important officers appointed by him are: the Ohio 
state board of uniform laws; various boards concerned 
with the public safety, such as the state board of health, 
the state board of medical examiners, the state board of 
dental examiners, the Ohio board of pharmacy, five of the 
seven members of the state board of veterinary examiners, 
Ohio state sanatorium, three of the five members of the 
state board of embalming examiners, the state fire mar¬ 
shal; nineteen of the twenty-one members of the board 
of trustees of Ohio University, the board of trustees of 
Miami University, five of the nine members of the board of 
trustees of Wilberforce University, the state normal school 
commission, the board of library commissioners; various 
boards dealing with charities and corrections, such as the 
board of state charities, the board of trustees of the Sol¬ 
diers’ and Sailors’ Home, Home of Ohio Soldiers, Sailors, 
etc., and eighteen others; the state geologist, the board of 
directors of the state forestry bureau, fish and game com¬ 
mission, and various others.^ 

The governor is also empowered to remove for cause any 
officers whom he may appoint. He has no power, however, 
to remove any state officer elected by the people. The 
governor himself may be removed only by impeachment. 
The charges of impeachment must be preferred by the 

1 The governor may also fill vacancies in the offices of auditor, 
treasurer, secretary, or attorney-general, when such vacancies are 
caused by death, resignation, impeachment, removal, or other dis¬ 
ability. The governor’s appointees hold until the disability is removed 
or until their successors are elected and qualified. 


GOVERNMENT OF OHIO 


II 


house of representatives and the trial conducted by the 
senate. The concurrence of two thirds of the senate is nec¬ 
essary to convict, and when sitting as a court of impeach¬ 
ment, the senators are upon oath or affirmation to do 
justice according to the law and the evidence. 

Another important power of the governor is that of 
granting reprieves, commutations, or pardons for all crimes 
committed against the state, except in cases of treason or 
impeachment. He may not, however, grant a pardon before 
conviction. To advise him in the exercise of his power of 
clemency there is a board of pardons, established in 1888, 
which investigates applications for pardons and makes 
recommendations to the governor, but he is not legally 
bound by its advice. Usually at least three of the four 
members of this board must sanction a recommendation 
for pardon before it may be made to the governor. The 
governor may, however, act independently of the board 
if he so desires. 

Finally, the governor has certain military powers. He 
is commander in chief of the military and naval forces of 
the state, except when called into the active service of the 
United States. He may call out the state militia or any 
portion of it to execute the laws, suppress insurrection, or 
repel invasion. The power rarely amounts to much, but 
occasionally there are riots or other disturbances which 
the local authorities are unable to cope with, in which case 
application is made to the governor for the aid of the militia. 

The governor is also the representative of the state in its 
relations with the United States and with other states. 
Calls upon the President of the United States for the use of 
the federal troops are made by him, and when criminals 
from the state have escaped to foreign countries, application 
is made by him to the national government, which ne- 


12 


SUPPLEMENT 


gotiates for their extradition. Likewise he makes requi¬ 
sitions upon other governors for the surrender of fugitives 
from justice who have escaped into their states, and similar 
demands from other executives must be directed to him. 

As the chief executive of the state the governor occupies 
an important political and social position. He is often the 
acknowledged chief of his party in the state, he exerts great 
influence in the determination of its policies, and is often 
one of its delegates at large to the national convention 
which nominates the candidate for President of the United 
States. He is much in demand at college commencements, 
county fairs, and other public gatherings, is expected to 
attend grand army reviews, inaugural ceremonies and 
military encampments, and, of course, to welcome dis¬ 
tinguished visitors to the state and sometimes to entertain 
them. 

Lieutenant Governor.—In case of the death, resignation, 
or removal of the governor, he is succeeded by the lieu¬ 
tenant governor, who is elected at the same time and for the 
same term. The lieutenant governor may also act as gov¬ 
ernor during the disability or absence of the chief executive 
from the state. He is also the presiding officer of the senate 
and has a casting vote in that chamber in case of a tie. 

Other Elective State Officers.—The constitution of Ohio 
declares that the supreme executive power shall be vested 
in the governor, but it also declares that the executive de¬ 
partment shall consist, in addition to the governor, of a lieu¬ 
tenant governor, secretary of state, auditor, treasurer, and 
attorney-general. Thus the executive power is really di¬ 
vided between the governor and a number of colleagues. 
The officers named above are all elected by the people, and 
over them the governor has very little control. He does, 
however, exercise a limited oversight over them as a result 


GOVERNMENT OF OHIO 


13 


of his general power to take care that the laws are faith¬ 
fully executed, and the constitution requires all executive 
officers to report to him upon subjects relating to the duties 
of their respective offices. All these officers are elected 
for a term of two years except the auditor, who serves for 
four years. 

The Secretary of State keeps the great seal of the state, and 
affixes it to public proclamations, commissions, and other 
public documents; publishes the laws and keeps the originals; 
performs certain duties in connection with elections; fur¬ 
nishes state officers with stationery and other supplies; issues 
certificates of incorporation; distributes public documents; 
and has charge of the archives of the state. 

The Auditor audits the public accounts of all officers and 
issues warrants upon the treasurer for the payment of 
moneys authorized by law. He has charge of public land 
records, serves on various financial boards, sees that revenue 
claims are prosecuted, ascertains the amount due the state 
from the counties, and settles with the county treasurer and 
other officers. 

The Treasurer receives and keeps the public moneys 
and pays them out upon warrants issued by the auditor and 
in accordance with appropriations voted by the legislature. 
Each year he has published a statement of all receipts and 
expenditures besides a monthly statement of balances. 

The A ttorney-General is the chief law officer of the state. It 
is his duty to institute and prosecute all suits on behalf of 
the state and to defend all suits against the state or its 
agents; to give legal advice to the governor, the state’s 
attorneys, and all other state officers regarding their legal 
power and duties, to prepare contracts to which the state is 
a party; and, when required, to give opinions to each branch 
of the legislature upon legal or constitutional questions. 


14 


SUPPLEMENT 


Besides these officers there is a Commissioner of Common 
Schools elected for a term of two years. He has general 
supervision over the public schools of the state. It is his 
duty to see that the school funds are properly distributed, 
to confer annually with school boards and teachers of the 
state, and to lecture before teachers’ institutes. He issues 
an annual report on the educational conditions of the state. 
He also appoints the state board of examiners. 

There is still another officer known as the Food and Dairy 
Commissioner, elected for a term of two years, who enforces 
the state laws prohibiting the adulteration and fraudulent 
labeling of food, drinks, or drugs. 

There is also a Board of Public Works consisting of three 
members. One of the members of this board is elected each 
year and serves for a term of three years. The principal 
duty of the board is to superintend the various public works 
of the state. 

Appointive State Officers, Boards, and Commissions.— 

In addition to these state officers there are many others of 
less importance, most of whose positions have been created 
by statute and which are filled by appointment by the gov¬ 
ernor with the advice and consent of the senate. With the 
exception of the superintendent of insurance, who serves 
for three years, the chief inspector of mines and the chief 
inspector of workshops and factories, who have four year 
terms, most of these appointive officers serve for two years. 
They include the commissioners of railroads and telegraphs, 
state inspector of oils, the supervisor of public printing, the 
state geologist, the state fire marshal, the state highway 
commissioner, superintendent of banks and banking, the 
chief examiner of steam engines, the adjutant general, and 
a number of others. These officers are required to make 
yearly reports to the governor. 


GOVERNMENT OF OHIO 


15 


Besides the above appointive officers there are a great 
number of boards and commissions. Two of these are created 
by the constitution itself. The first of these, the commis¬ 
sion of the sinking fund, is composed of the auditor, the 
secretary of state, and attorney-general; it accumulates and 
disburses the sinking fund for the payment of the state debt. 
The other, the board of public works, is elective and need 
not be discussed in this connection. 

The Commissioner of Labor Statistics, appointed by the 
governor and the senate for two years, is charged with the 
collection of statistical information relating to the com¬ 
mercial, industrial, educational, and sanitary conditions of 
the laboring classes and to the permanent prosperity of the 
mechanical, manufacturing, and productive industries of the 
state. His main duty is to gather information, which he 
publishes in reports for distribution. 

The State Board of Arbitration is composed of three mem¬ 
bers appointed by the governor for three years. One of the 
three must be an employer, one an employee, and the third 
is recommended to the governor by the other two. The 
general purpose of the board is to prevent as far as possible 
strikes and lockouts. It investigates disputes between 
employers and employees upon request of either party. 

For the enforcement of the laws to prevent children under 
a certain age from being employed in factories and the laws 
relating to the conditions under which factory labor may be 
carried on, there is a Chief Inspector of Workshops and Fac¬ 
tories. He is appointed for four years by the governor, and 
he in turn appoints twenty-five district inspectors for terms 
of three years. 

The Superintendent of Insurance has general supervision 
of the administration of the laws governing the insurance 
business. Insurance companies doing business in the state 


i6 


SUPPLEMENT 


are required to comply with certain provisions intended to 
protect their patrons against fraudulent and unsafe concerns, 
and to make regular reports to the state superintendent. 

The Chief Inspector of Mines^ assisted by seven district 
inspectors, is charged with the administration of the mining 
laws, with the investigation of the causes of mine accidents, 
and with the promotion of the mining industries generally. 

The State Geological Survey conducts geological investi¬ 
gations, studies the mineral resources of the state, and pre¬ 
pares geological maps. Most of the actual work is done by 
the state geologist, with the aid of eight assistants. 

The State Board of Live Stock Commissioners, consisting 
of thirteen members, supervises the live stock laws, investi¬ 
gates diseases among cattle and other live stock, and pro¬ 
motes the live stock interests of the state. 

The State Board of Health, consisting of eight members and 
a large staff of assistants, has supervision of the public 
health laws of the state. It makes chemical analyses to' 
ascertain the existence of contagious diseases, and has power 
to establish quarantine. 

Some of the many other state boards and commissions 
are:—the board of agriculture, the various boards of equali¬ 
zation, the schoolbook board, the state railroad commission, 
the state library commission, the fish and game commis¬ 
sion, the state board of school examiners, and the boards of 
trustees of various colleges and universities of the state. 

The Judiciary.—The judicial power of the state is vested 
in a supreme court, circuit courts, courts of common pleas, 
courts of probate, justice and police courts, and various 
municipal courts. The supreme court is held by six jus¬ 
tices, two of whom are chosen in each even-numbered year 
for a term of six years. It has original and appellate juris¬ 
diction in civil and criminal cases. In trying cases involv- 


GOVERNMENT OF OHIO 


17 


ing the constitutionality of an act of the legislature or of 
Congress as well as cases in which the division is not unani¬ 
mous, the full bench must sit. Ordinarily however the 
court is divided into two divisions of three judges each. 
The court holds its regular annual term in Columbus, be¬ 
ginning on the Tuesday after the first Monday in January. 
Special, or adjourned sessions are sometimes held at other 
times. There is a clerk of the court, elected for a term of 
two years, whose duty it is to keep the docket and the rec¬ 
ords; a reporter who prepares and publishes the decisions of 
the court; a law librarian with a three year term who has 
charge of the law library and the court rooms. The re¬ 
porter and the librarian are appointed by the court. 

Next below the supreme court are the circuit courts. The 
state is divided into eight judicial districts, from each of 
which three judges are elected. ' Each district comprises 
four or more counties.^ Circuit judges are elected for six 
year terms. They have original and appellate jurisdiction 
in civil and criminal cases. 

Besides the supreme court and the circuit courts of the 
state there are courts of common pleas. For these courts 
the state is divided into ten districts, each consisting of three 
or more counties. Each one of these districts is divided into 
three subdivisions and from each subdivision one or more 
common pleas judges are elected. Hamilton county com¬ 
prises a district within itself and elects three judges. The 
judges of the court of common pleas are elected for terms of 
six years. These courts likewise possess both original and 
appellate jurisdiction, and try both civil and criminal cases. 
The superior court of Cincinnati, composed of three judges 

1 The eighth circuit is composed of Cuyahoga, Summit, Medina, 
and Lorain counties. The average circuit comprises seven or eight 
counties. There are sixteen counties in the largest circuit. 


i 8 


SUPPLEMENT 


with five year terms, is supplementary to the common pleas 
court ol Hamilton county. In addition to the foregoing 
are the two courts of insolvency of Hamilton and Cuyahoga 
counties, each of which is presided over by a judge elected 
by the people. 

Suffrage and Elections in Ohio.—The constitution of 
the state requires that voters shall be citizens of the United 
States above the age of twenty-one years, that they shall 
have resided in the state one year preceding the election, 
and in the county and township for such a period of time 
as may be provided by law. That period of time is now 
fixed as thirty days for the county and twenty days for the 
township. No educational test is required, and so illiterates 
may vote equally with persons of education. In fact the 
only men excluded from voting are idiots, insane persons, or 
persons convicted of an infamous crime. Voters are priv¬ 
ileged from arrest during their attendance upon elections 
except for treason, felony, or breach of the peace. 

Native born women who possess the qualifications of men 
and who are wives or daughters of citizens of the United 
States may vote for members of the board of education. 
They are also eligible to membership in the board. 

The constitution requires that all elections shall be by 
ballot. The form of the ballot is the party column type, 
and at the head of each party column is a circle which 
enables the voter to cast his ballot for the entire party tickef 
by means of a single mark. Owing to the large number of 
elective offices, the ballots are sometimes very large. 

National, state, and county elections are all held on Tues¬ 
day after the first Monday in November, in even-numbered 
years. ^ The laws governing the holding of elections and 

1 Municipal and township elections are held in November, in odd- 
numbered years. 


GOVERNMENT OF OHIO 


19 


the procedure of voting are very detailed, but in general 
the rules are substantially the same as those described in 
Chapter VII of this book. Various precautions are taken in 
order to prevent fraudulent voting at the elections. The 
laws of the state provide that in cities with a population 
of 11,800 or more all voters must register before they are 
permitted to vote. ^ In the larger cities the voters are all 
required to register every year four days prior to the election. 
In the smaller cities a general registration is required every 
four years only. Printed copies of the list of voters must 
be posted at the polling places at least three days before 
the election. 

Party Control.—The laws of the state recognize polit¬ 
ical parties as necessary factors in elections, and provide 
for their control. Parties are organized for effective work 
through committees. There is a committee for the state 
and one for each district, county, township, city, and ward. 
Nominations for office are made either by the primary or 
convention. The primary is a meeting of the voters of an 
election district for the purpose of choosing candidates for 
local offices and delegates to the party convention. The 
delegates so chosen meet in convention and select party 
candidates for the offices of the district which they represent. 
The convention also draws up the party platform, which 
states the issues of the campaign and the attitude of the 
party toward them. 

Direct Primary .—Ohio recently passed an elaborate pri¬ 
mary election law which went into effect January i, 1909. 
It provides that all political parties which at the preceding 
general election cast at least ten per cent of the entire vote 
shall nominate by ballot all candidates for members of Con- 

1 If a voter is kept from registering on the prescribed day by sick¬ 
ness, or enforced absence, the law permits him to register by affidavit. 


20 


SUPPLEMENT 


gress, all other public elective offices, except state and dis¬ 
trict where the latter contains more than one county, all 
delegates to county*, state, and district conventions and all 
committeemen of the state and local party organizations. 
This primary or first election is held on the same day for all 
political parties: for county offices and district and state 
delegates it is held in the usual polling places, on the third 
Tuesday of May in the even-numbered years; and for town¬ 
ship and municipal offices, justices of the peace and school 
boards, it is held on the first Tuesday after the first Monday 
in September of the odd-numbered years. The polls are 
open from 5130 o’clock in the morning till the same hour in 
the evening (5:3o), and the election is controlled and judged 
by the same officers that control the regular election. The 
voting is by a printed ballot containing the names of the 
candidates and delegates of all parties arranged in columns 
according to party as in the regular election. Nomination 
for places on the ballot must be made by nomination papers 
filed with the board of elections at least twenty days prior 
to the primary election and signed by two per cent of the 
party voters of the political division or unit for which the 
nomination is to be made; and the basis of percentage in 
each case is the vote which the party cast in that political 
division or unit for governor in the last preceding election. 

Finances of the State.—The principal sources of reve¬ 
nues are the tax on real estate, which yields by far the greater 
portion of the state’s income, the tax on personal property, 
which yields a comparatively small amount, and various 
special taxes. 'Among the latter may be mentioned excise 
taxes on corporations enjoying public franchises, and taxes 
on the sale of liquor and cigarettes. The state also receives 
sums from the sale of land given by the United States for 
educational purposes upon the use of which it pays six per 


GOVERNMENT OF OHIO 


21 


cent interest. The total income of the state amounts to 
more than $i i,000,000 per year. 

State Expenditures .—The largest item of expenditure 
for state purposes is for the maintenance of the charitable 
institutions such as insane asylums, hospitals, houses for 
soldiers and sailors, etc., for the support of which more than 
$3,000,000 are spent annually. The next largest item is for 
public education, for which about $2,500,000 are spent. 
This consists principally of the common school fund, which 
is distributed among the counties of the state to be used 
for school purposes. Next in importance comes expendi¬ 
tures for the maintenance of penal and reformatory institu¬ 
tions which aggregate about $850,000. To these more im¬ 
portant items of expenditure may be added various others, 
such as those for the maintenance of the legislative, execu¬ 
tive, and judicial departments, for agriculture, public works, 
interest on the state debt, etc. 

Taxation .—Assessment of Property .—The method of as¬ 
sessing personal property differs from that employed in 
assessing real property. Personal property is assessed every 
year by assessors elected biennially by the townships and 
wards. These officers supply each adult citizen within their 
districts with blanks upon which he must report under oath 
the amount and value of his personal property. The asses¬ 
sor then collects these reports and turns them over to the 
county auditor, who keeps a list of all such property within 
the county. All corporations except telegraph, telephone, 
railway, and express companies report their personal prop¬ 
erty to the auditor of the county in which they carry on 
business. The laws prpvide that the auditor may, when he 
learns of a failure to report certain personal property for 
taxation, add fifty per cent of the value of such property as 
a penalty for attempted evasion of the tax. Assessments 


i22 


SUPPLEMENT 


are made between the second Monday in April and the third 
Monday in May. 

Real estate is assessed every ten years by officers elected 
in each ward and township of the state. These “decennial 
assessors,” are furnished with the necessary maps, books, 
etc., by the county auditor, and proceed to determine as 
nearly as practicable the value of all lands and buildings. 

Provision is also made for reviewing the original assess¬ 
ments as made by the assessors, mainly with a view to 
securing equality of assessments among the townships with¬ 
in the county. This work is done by various boards of 
equalization. There is a city board which meets each year 
and hears the complaints of property owners who are not 
satisfied with the assessment of their property. Besides 
the annual board there is a decennial board which every 
ten years adjusts the assessments on real estate. Upon the 
application of the county auditor a city may substitute for 
the annual and decennial boards a board of review, which 
equalizes both real and personal property, and which con¬ 
sists of three freeholders appointed for five years by the 
state board of appraisers and assessors for railways and 
banks. In the county there are likewise annual and decen¬ 
nial boards of equalization consisting of the county auditor 
and county commissioners, and, in case of the decennial 
board, of the county surveyor. 

For the purpose of securing equality of assessments among 
the counties of the state there are two annual state boards, 
one for banks and the other for steam railroads, as well as a 
decennial board to adjust taxes on real estate. The latter 
body consists of one member elected from each of the sena¬ 
torial districts every tenth year. When it has finished its 
work it sends a statement to the county auditor showing 
the change which is to be made in the assessment of property 


GOVERNMENT OF OHTO 


23 


within the county. The county and city boards then 
adjust the valuations within their respective districts. 

Levy of Taxes .—After the assessment is completed the 
next step is to levy the taxes. In the first place the proper 
authorities must determine the amount of money which 
must be raised to meet the appropriations for the coming 
year. These bodies are the state legislature for the state, 
the county commissioners for the county, the township 
trustees for the township, the city council for the city, and 
the board of education for the school district. 

By an important act passed in 1911, the maximum rate 
of taxation which the various local authorities may levy 
was fixed and provision was made for a board of budget 
commissioners in each county to adjust annually the tax 
rates. To this board the tax levying authorities of the 
several local governments must submit an annual budget 
containing an estimate of their needs for the year. The 
budget commissioners may revise or reduce but not increase 
the estimates submitted. When they have completed their 
work, they certify their action to the county auditor, who 
ascertains the rate necessary to be levied. 

Collection of Taxes .—After the process of assessing and 
levying the taxes has been completed, the simpler and less 
difficult task of collection follows. The county treasurer 
collects all taxes within the county. Taxes are due by De¬ 
cember twentieth of each year, but they may be, and usually 
are, paid in two installments, the first on the date mentioned 
above, the second by the twentieth of the following June. 
With few exceptions payments are made at the treasurer’s 
office. After he has made the collection he then pays over to 
the state treasurer the portion which belongs to the state, 
and to the treasurers of the cities and other local bodies the 
amounts which are due them. 


24 


SUPPLEMENT 


In case any property owner neglects or refuses to pay his 
taxes within the time allowed, the treasurer is required to 
collect from him, adding, as a penalty, five per cent to the 
original tax. If taxes are still delinquent one year after they 
are first due the treasurer may authorize the sale of the real 
estate to pay the back taxes, penalties, and taxes for the 
current year. Persons owning such property may, however, 
redeem it within two years after its sale. 

Charitable, Reformatory, and Penal Institutions.—A 
large portion of the expenditures of the state go, as has been 
said, toward the maintenance of institutions for the care of 
the dependent and needy classes. At the head of this part 
of the state’s activity is the board of state charities, which 
is composed of six members appointed by the governor with¬ 
out compensation. The governor himself is president of the 
board. Its principal duty is to investigate the affairs of 
state institutions of charity and correction. It submits 
an annual report in which it suggests such improvements 
as it may deem wise. In addition each county has a board 
of visitors composed of six members, three of whom are 
women. They are appointed by the judge of the common 
pleas or probate court, and serve three years without com¬ 
pensation. 

The state supports numerous institutions of charity and 
correction. For the care of disabled soldiers and sailors it 
has established a home at Sandusky. At Madison there is 
also a home for Ohio soldiers, sailors, etc. The Soldiers’ and 
Sailors’ Orphans Home at Xenia cares for destitute children 
of Civil War veterans. For the care of the insane, hospitals 
have been established at Cleveland, Columbus, Dayton, 
Athens, Toledo and Massillon. Hamilton county supports 
the Longview Hospital near Cincinnati. 

Ohio was the first state to institute a separate hospital 


GOVERNMENT OF OHIO 


25 


for epileptics, and a law of 1908 provides that it shall be 
unlawful after January i, 1911, to keep any person suffering 
from pulmonary tuberculosis in any county infirmary except 
in separate buildings. The hospital for epileptics is located 
at Gallipolis. For the education of deaf and dumb children 
there is an institution at Columbus and a similar one for 
the blind in the same city. Columbus is also the home of 
the Institution for Feeble-minded Youth, which cares for 
defective children of certain ages who have been residents 
of the state for at least one year. 

For the confinement of criminals who have been con¬ 
victed by the courts and sentenced to terms of imprisonment, 
the state has established a penitentiary and a state reform¬ 
atory. Persons convicted for their first offenses, except those 
sentenced to imprisonment for life, are sent to the reform¬ 
atory where the discipline is not so harsh. The penitentiary 
is governed by a board of five managers, appointed by the 
governor for five years. Boys between the ages of ten and 
sixteen who have been convicted of an offense against the 
state are sent to the Boys’ Industrial School at Lancaster. 
There is a similar home for girls near Delaware. 

Public Education. —^From the very beginning the state 
took an active interest in the education of its citizens, and in 
this respect it received liberal aid from the national govern¬ 
ment in the form of land grants. No permanent policy, how¬ 
ever, was adopted until 1825, when a law was enacted pro¬ 
viding for the establishment of schools in every township, to 
be supported by general taxation. In 1843 the office of 
commissioner of common schools was created. To insure 
the attendance of children for whose benefit the public school 
was established, there is a compulsory attendance law, which 
requires all children between the ages of eight and fourteen, 
with a few exceptions, to attend the public schools during 


26 


SUPPLEMENT 


the full time that the school is in session, which must be at 
least twenty-four weeks. Children between fourteen and 
eighteen, unless regularly employed, must also attend. 

A law of 1853 increased the amount of taxes for school 
purposes and provided for the organization of separate school 
districts for cities and villages of a certain size. This re¬ 
sulted in increased efficiency in the city schools, but did not 
materially benefit the schools of the rural districts. The de¬ 
fect was remedied in 1892, when the township board was 
given control of all the schools of the township, which 
were then graded and carefully supervised. Township high 
schools were also established, and later, in 1902, provisions 
were made whereby high school facilities may be extended 
to country districts where no high school exists. The method 
by which this is accomplished is as follows: Examinations 
are held in each township, and those who pass are awarded 
diplomas which admit them to the local high school, or if 
there is none, to a neighboring school. In such cases the 
tuition is paid by the school board of the pupil’s district. 
The high schools are graded into three classes. Those of 
the first class offer a four years’ course, those of the second 
a three years’ course, and those of the third a two years’ 
course. 

As already stated, the state commissioner of common 
schools is at the head of the state educational system. He 
acts as general supervisor of the schools of the state, recom¬ 
mends school legislation, has charge of the educational funds, 
and appoints the five members of the state board of exam¬ 
iners. This board conducts examinations for those applying 
for certificates to teach. There are also county and city 
boards of examiners who perform similar services in their 
respective districts. Each township is a school district and 
has a board of education of five members elected for four 


GOVERNMENT OF OHIO 


27 

years. Townships may or may not be subdivided into dis¬ 
tricts. 

The public schools are supported for the most part by 
taxation, state and local. Some revenue is derived from the 
common school fund created by the sale or rent of certain 
lands granted by Congress, or swamp or salt lands devoted 
to school purposes. The general common school fund is 
derived from a levy of a one mill tax on each dollar of tax¬ 
able property in the state. This is distributed among the 
counties, townships, and districts in proportion to their 
population. The third source of school revenue is known as 
the contingent fund, which may be levied by the school 
boards in those districts where the state funds prove to be 
inadequate. A district may also vote a special tax to make 
additional school improvements. Still other revenues are 
obtained from fines, licenses, tuitions of nonresidents, etc. 

In addition to the support of elementary education the 
state supports four institutions of higher learning. The 
most important of these is the Ohio State University at Co¬ 
lumbus, which is supported largely by general state taxation. 
The university is controlled by a board of seven trustees 
appointed by the governor. The other three institutions 
are Ohio University at Athens, Miami University at Ox¬ 
ford, and Wilberforce University near Xenia. The last 
mentioned was founded to provide for advanced instruction 
for colored men and women. Normal schools for the train¬ 
ing of teachers are maintained in connection with these 
universities. 

Government of Counties and Townships.— There are at 
present eighty-eight counties in the state of Ohio. The 
constitution prohibits the legislature from reducing the size 
of any existing county below an area of 400 square miles, or 
from creating any new county with an area smaller than that. 


28 


SUPPLEMENT 


It also declares that no county shall be divided nor any new 
county created without the question being submitted to 
the voters of the several counties affected. Such a law 
must be submitted at the next general election after its 
passage and must receive a majority of all the votes at the 
election in order to be adopted. The same conditions apply 
to the question of removing county seats. The legislature 
may, however, divide a county that has a population of 
100 , 000 . 

The chief governing body in the county is the board of 
county commissioners, which exercises both legislative 
and administrative powers. The board consists of three 
members elected by the people for terms of two years. In 
general the duties of the board consist in attending to all 
the business of the county that is not specifically assigned 
to some other county officer. It builds and maintains county 
buildings, determines the rate of county taxes, allows 
claims against the county, cares for bridges and highways, 
supervises the accounts of other county officers, and controls 
county property generally. 

The principal county officers besides the county board are 
the sheriff, prosecuting attorney, auditor, treasurer, recorder, 
clerk, coroner, probate judge, who holds the county pro¬ 
bate court,^ surveyor, three infirmary directors, where there 
is a county infirmary, a board of three school examiners, 
and a board of six county visitors. All these officers ex¬ 
cept the examiners and visitors are elected for two years. 
Their duties are described in the chapter on Local Govern¬ 
ment. 

The counties of the state are divided for convenience of 
local government into towns or townships which correspond 

^ Hamilton and Cuyahoga counties have insolvency courts, to 
relieve the probate courts of cases involving bankruptcy. 


GOVERNMENT OF OHIO 


29 


for the most part to the “congressional townships” into 
which the lands of Ohio and other western states were di¬ 
vided by the national government in the early days. The 
chief political power in each township is vested in three 
trustees, elected at the November elections for terms of 
two years. Their powers and duties are numerous but are 
largely administrative. They include fixing the rate of local 
taxation, dividing the township into road districts, author¬ 
izing new roads, etc. The judicial officers of the town 
are the justices of the peace, the number of whom depends 
upon the population. They are elected for a term of four 
years and are usually paid by fees. Their jurisdiction 
is necessarily entirely original. It extends, in civil cases, 
to controversies not involving more than $300, and, in 
criminal cases, is limited to the minor offenses, such as 
breach of the peace, felony, and misdemeanor. 

Government of Cities, Incorporated Towns, and Villages. 
—^The form of local government described above is intended 
to meet the needs of more or less sparsely settled communi¬ 
ties. Where the population is more numerous and congested 
in centers, a different and more complex system of local gov¬ 
ernment is necessary. Under the municipal code of Ohio 
an urban community becomes a city when its population, 
as shown by the federal census, reaches 5000. After each 
federal census the secretary of state issues a proclamation 
which he sends to the mayors of all cities and villages and 
which contains a list of all municipalities thus entitled to 
rank as cities and those which fall into the class of villages. 
When a village thus becomes a city the officers of the new 
corporation must be chosen at the next regular election. 

Under the first constitution of the state the common 
method by which cities and villages were incorporated by 
the legislature was by granting special charters to each 


30 


SUPPLEMENT 


community. The present constitution requires that all 
municipal corporations shall be organized under general 
law, but this provision was evaded by making elaborate 
classifications of cities and villages and legislating for each 
class. Prior to the adoption of the municipal code munici¬ 
palities with less than 5,000 population were divided into 
hamlets and two classes of villages. Municipalities with 
more than 5,000 were even more elaborately classified, and 
a different form of government provided for each class. ^ 

The municipal code of Ohio, passed by the legislature in 
1902, provides that each city shall have a mayor elected for 
a term of two years. He has the usual powers of city execu¬ 
tive described on page — of this book. He is responsible for 
the peace and good order of the city. He has power to veto 
ordinances passed by the city council, and not only the whole 
of an ordinance but any part of it. In order that an ordi¬ 
nance may become effective over the mayor’s veto, it must 
be repassed by the council by a two-thirds vote of all the 
members of that body. The code also provides for a presi¬ 
dent of the council, elected for two years, who presides over 
the council, and assumes the duties of mayor when that 
office becomes vacant.^ He has no vote in the council except 
in case of a tie. The other executive officers of the city are 
the auditor, elected for two years, the treasurer, and the 
solicitor, both elected for two years. The auditor keeps the 
books of the city and audits the accounts of all city officers 

1 In all fourteen classes and grades of cities and villages had been 
created and nine of these contained but one city. The result was that 
all municipalities of any size were governed by special charters. In 
1902 the state supreme court held these classifications unconstitu¬ 
tional. Ellis, “ Municipal Code of Ohio,” 3rd ed., introduction. 

2 When acting as mayor, however, he cannot serve as president of 
the council. “Mun. Code,” 333 


GOVERNMENT OF OHIO 


31 


at least once a year and at the expiration of their terms. 
The treasurer has charge of the funds of the city. The 
solicitor acts as prosecuting attorney in the police courts, 
gives legal advice to city officers, and prepares contracts 
and other legal instruments in which the city is a party. 

The code further provides for two departments, viz., the 
department of public service and department of public 
safety. At the head of each is a director appointed by the 
mayor. The department of public service supervises all the 
public institutions of the city, with a few important excep¬ 
tions, and has charge of the improvements of streets, lands, 
bridges, lighting and cleaning of public places, and the con¬ 
struction of all public works. The department of public 
safety has charge of the police and fire departments. There 
is also a board of health, consisting of five members ap¬ 
pointed by the mayor and council, which makes and en¬ 
forces rules for the protection of the health of the com¬ 
munity. In addition to these each city has a board of 
education which has direct charge of the city school system. 

The legislative authority of the city is vested in a council 
elected by the people for a term of two terms. The size of 
the council varies in proportion to the population. In cit¬ 
ies of less than 25,000 it consists of seven members, three of 
whom are elected from the city at large and the remainder 
from wards. In cities having a population varying from 
25,000 to 40,000 the number of councilmen is increased to 
nine, three being elected at large and six by wards. One 
additional councilman is allowed for every 15,000 above 
40,000, and in case the total number is fifteen or more, one 
out of every five members must be elected at large. After 
each federal census the council is required to redistrict the 
city, dividing it into the necessary number of wards.^ 
1 See Ellis, “ Municipal Code of Ohio,” 303-305. 


32 


SUPPLEMENT 


Councilmen chosen from the city at large must have been 
residents of the city for a year prior to the election, and a 
similar residence requirement in the ward is required for 
those chosen from that district. 

The council is empowered to enact ordinances on a great 
variety of matters of a local character, all of which are 
enumerated. It is a rule of the courts to construe strictV 
the powers of cities, and usually the council cannot legislate 
upon any matters except those over which it has been given 
specific power. The principal powers conferred relate to 
taxation, borrowing money, the construction and care of 
streets, and other public improvements, the regulation of 
traffic on the streets, licensing of places of public amuse¬ 
ments, saloons, and other public trades and businesses, pro¬ 
tecting of the public health, the granting of franchises, and 
the enactment of ordinances which may be necessary to carry 
into effect the powers granted to the city. 

The city judicial system varies with the size of the munic¬ 
ipality. In the smaller cities it is vested in a mayor’s 
court. The larger cities elect police judges to serve for four 
years. The mayor’s court has a jurisdiction similar to that 
of the justice of the peace and tries cases involving city 
ordinances. The police courts have, in addition, jurisdic¬ 
tion of misdemeanors arising within four miles of the city 
limits. 

Villages differ from cities mainly in their smaller size and 
in having a simpler organization. In Ohio municipalities 
with a population of less than 5,000 are classed as villages. 
Like cities they are incorporated municipalities and enjoy 
special powers and privileges, though of course their activ¬ 
ities are much fewer and simpler. The chief officers of the 
village are the mayor and a council of six members, elected 
by the voters for a term of two years. 


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